You’ve Been Granted Oral Argument — Now What?

On a lawyer listserv to which I belong, an attorney up in Pennsylvania posed the loaded question: I’ve been granted oral argument. Now what? Unfortunately, this is something that isn’t really covered by the Florida Rules of Appellate Procedure, which only discuss how to request oral argument. See Rule 9.320. Similarly, the Federal Rules of Appellate Procedure have a lot to say about when one will or won’t be granted oral argument, but not much about what to do when you get there. See FRAP 34. While the rules don’t say much about how to prepare for and handle an oral argument, here are the universal tips that I gave him:

  1. Re-read both side’s briefs, and be sure you know your record cites cold.
  2. Update all of the research in both briefs to ensure nothing has been overturned, or if there is anything else new out there. If your rules allow, consider filing a notice of supplemental authority, if relevant (and note that most courts allow this only for cases that are truly new since briefing, not that case from 1986 you overlooked before). Do not wait until the last minute to do this. It’s a lot more welcome/useful a week before oral argument rather than the morning of oral argument.
  3. Get a sense for the judges on your panel, as soon as that information is available: see if they were on the panel for any cases cited in the briefs, or on any other cases that deal with your issues. If a particular judge has a history of writing on a particular issue relevant to yours, that’s good to know!
  4. Prepare an argument outline, and be ready to not follow any of it. If the court has asked for argument, the judges likely have questions for you. You should have a good sense of what those questions will be and what your answer is to them. If possible, engage a colleague or two to pepper you with questions and conduct a moot court argument.
  5. If you are appellant and rules allow, be sure to reserve some time for rebuttal.
  6. Don’t overstay your welcome. Know what the court’s rules are for time for argument (and logistically, how it signals attorneys on time). If you’re on a red light, finish your sentence quickly and stop. As you stop, say something like “and if the court has any more questions, I would be glad to answer them.”
  7. If you do get stumped on a question (particularly the “where in the record…?” type), ask the court for permission to follow up with a letter or other supplemental filing (check your rules on this ahead of time) that provides the cite you couldn’t come up with in the heat of the moment. Then do so, in a very straight forward manner without going deep into argument, and do it quick (like within 24 hours), while everything is still fresh in the court’s mind.

In my view, it is hard to overprepare for appellate oral argument, even though you end up using a small fraction of what you have done to prepare. The time is well spent, though, if you have really thought through the issues in a way that allows you to answer even the most obscure of questions from the panel with ease.

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