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Federal Criminal Appeals: Five Points Concerning the “oral Argument”

Kish Law LLC

I am in the final prep stages for an “oral argument” tomorrow morning in the esteemed (or as some wags call it, the “steamed”) United States Court of Appeals for the Eleventh Circuit, the home of which is a few blocks from my office here in lovely Atlanta, GA.  I think I have done over 70 such oral arguments in various federal courts of appeals around the country, but this will be the first “virtual” session, with the Judges and lawyers all participating via the Zoom app.  While the technology will have to replace the in-person proceeding, I wanted to briefly discuss five recurring features of an oral argument.

First, many people are not aware that it is only a rare federal appeal that is selected for oral argument.  The federal appellate courts are overwhelmed, and generally only select cases to be orally argued if the issues are unique, there was a lengthy trial, or the matter has some other unusual feature.  Once a case is selected for oral argument, it is placed on a calendar with other cases that will also benefit from oral argument.  Each day there are around 4 or 5 cases set for argument.  Then, a “Panel” of 3 judges is assigned who will hear the arguments and render decisions.  The clerk sets the dates and order of arguments and away we go!

Second, attorneys need to fully recognize that their time is very limited in an oral argument.  As a general rule, each side has only 15 minutes for their argument.  I am almost always the Appellant (because, after all, that is what happens in criminal cases, we lose and then appeal by claiming something went wrong in the lower court).  As the Appellant, we get to open and then have a brief rebuttal.  That means I generally have 10 or 11 minutes for my opening argument, and 4 or 5 for rebuttal.  Experienced oral advocates learn to think, and speak, quickly.

Third, the 3 Judges have already read the parties’ briefs, and usually have the benefit of a “bench brief” written by their law clerks, who are recent high-achieving law school graduates who have normally studied the record of the case more thoroughly than the Judge before the argument.  As a result, the Judges are generally primed and ready before the attorney rises (or in the case of being on Zoom, is on camera) to begin his or her argument.

Fourth, plans and outlines are often useless during an oral argument.  The Judges generally know the areas in which they are interested, and their questions will let the lawyer know what he or she should be focusing upon.  I have done oral arguments in which I barely got any words out of my mouth before one or more of the Judges began peppering me with questions.  Lawyers with less experience sometimes get flustered by the barrage of questions from the court, but in cases where I am somehow able to maintain my composure, I  try to remember that the questions are a benefit.  The Judges are telling me what they consider to be weak points they see in my case, and the questions allow me to rejoinder about how that particular issue is actually not so bad for the defense.

Fifth, some Judges occasionally get a little too aggressive, and I have seen attorneys out in the hallway breaking into tears after an especially rough grilling by the court of appeals.  I know it is not personal, but I try to remember lessons I learned as a kid when someone tries to bully a weaker person.  Standing up often earns more respect from a bully than any amount of fighting, and that is how I try to respond when the Court clearly does not accept my position.  I simply stand on my points and then just sit down without giving in.

I am looking forward to tomorrow, for oral argument in a federal appellate court is often the highlight of a legal career.  I am fortunate to have had many of these, and hope that some of my experience will help during tomorrow’s case.

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