Oral Argument Consultation
Oral Arguments are Quite Different in an Appellate Case
If you've read our "Should Your Trial Attorney Handle Your Appeal" article, you already know that The Brownlee Law Firm strongly encourages anyone considering an appeal to get an appellate specialist's perspective before making any decisions. For the reasons explained in the article, the general rule is that it is not a good idea to have your trial attorney handle your appeal without consulting an appellate specialist.
But if you are a trial attorney handling an appeal, oral argument can be one of the most daunting aspects of the appellate process.
Consult With an Appellate Specialist to Prepare Your Oral Argument
First, you have to decide whether to ask for oral argument, which is an important consideration in and of itself. Once again, consult with an appellate specialist before deciding to ask for oral argument.
But in the event oral argument has been set, it is critical you at least consult with an appellate specialist to better understand the logistics of oral argument:
3 judges versus 1 in trial court
The particular judges that comprise your panel and their preferences
Do's and don'ts that are only obvious to the seasoned appellate advocate
Attorneys at The Brownlee Law Firm have argued before the Florida Supreme Court, the district courts of appeal in Florida, and most of the federal appellate courts in the country.
Understand the Oral Argument Process in an Appellate Case
One of the services we regularly provide to attorneys is consultation for oral argument preparation. This can take many forms.
In a perfect world, you should hold at least one (ideally two to three) mock oral argument with experienced appellate advocates acting as judges. The mock oral argument should be as closely tailored to the real experience as possible.
You need a timer (and obviously you need to know your time constraints, which vary from court to court), and you need to feel the pressure of being interrupted with questions, because most oral arguments are more question-and-answer than speech delivery.
At the very least, you need to have an experienced appellate attorney review the briefing and submit questions that are likely to come up during oral argument. If you were the trial attorney on the case, you likely know every in-and-out in the case from a factual standpoint.
You know the trees.
But the appellate judges will not have the bandwidth to know what you know.
They need to understand the forest.
As a result, you need to be prepared for questions from someone who-like the judges who will decide your fate-is taking a 30,000 foot view of the case.
The Right Prep will Elevate Your Success Rate
Your success at oral argument will be based purely on your responses to the questions the judges have after reading the briefing.
You'll never be able to predict all the questions that will come up, but the more you can predict, the better your chances of success. Those questions need to come from someone who has oral argument experience and-like the judges on your panel-no familiarity with the case, other than what can be gleaned from the briefs.