A trial lawyer I assisted with an appeal wanted to argue his case to the Oregon Court of Appeals and asked me for whatever advice I might provide to him. What follows is my answer – eleven recommendations for oral argument – intended for his use, in that case, that day, before the Oregon Court of Appeals. This list is not intended to the best list, or the most comprehensive list, or to apply to every appellate court. It is simply the advice I gave one trial lawyer on how to argue an appeal to the Oregon Court of Appeals. Here it is:
- Read Chapter 6 of the Oregon Rules of Appellate Procedure generally, paying close attention to Rule 6.15 specifically (Procedure at Oral Argument).
- Know your panel. The judges sitting for the Oregon Court of Appeals are organized into four panels, or “departments.” Check the argument calendar to learn the make up of the three judge panel that will hear your case. Determine whether any of the judges on your panel wrote or participated in one for the opinions upon which you rely? If so, study that opinion with the specific judge(s) in mind.
- Be timely. Arrive at the start of each session, and know what to expect. Check the argument calendar the day before argument, to verify when your case will be called. Caveat: Even if you are the last argument of the morning or afternoon session, show up on time for the first argument of the session. Some cases are dismissed, some arguments are waived, and if one party is late, the court may take cases out of order. This is why the court expects everyone to be present at the start of the morning or afternoon session.
- Check in with the clerk. When you arrive at the courtroom, check in with the clerk (seated to the left as you enter the courtroom) by handing the clerk your business card and advising him or her which party you represent. The clerk will note your arrival and usually hand your card back. If you are permitted to make a reply argument, reserve reply time with the clerk at the same time you check in. See Rule 6.15. It is my practice to reserve the maximum reply time allowed, because it is during the reply argument that I get to the answer the bulk of the court’s questions, plus whatever argument the respondent just made. Take a seat anywhere in the back, until your case is called, and then move up to counsel.
- Introduce yourself to the court properly. Because you are the appellant, you will argue first, and last, if you reserve time to reply. See Rule 6.15. Introduce yourself to the court first, by saying, “May it please the court, my name is so-and-so, appearing on behalf of . . . .” Do not tell a joke, and do not be folksy; it never works. Never read anything unless it is a highly specific quote from the record or a legal authority. If you read too much, the court will interrupt you, and it happens very quickly. When your time is up, quickly wrap up your argument and sit down.
- Remember, questions are a good thing. Questions from the bench are a good thing because whatever the court questions you about is what interests or troubles the court. I therefore believe the sooner a question comes, the better. And if there are few questions, or heaven forbid, no questions, it is because one side has already won or lost the case. When this happens, hopefully it is not a surprise, but it will not happen to you in this case. Don’t worry.
- Answer questions straight up. Appellate judges are focused on threshold questions that may dispose of a case quickly. You are not going to trick the court. Answer any question directly, and then explain the answer, but never go outside the record. If necessary, tell the court you could answer the question but it will be necessary to go outside the record to do so. The court will say, “thank you, no.”
- What to do if you do not know the answer. Occasionally the court will ask a question not anticipated by the parties in the briefing. If you don’t know the answer, say so, and offer to provide the court with a short, two-page supplemental memorandum, if it seems appropriate to do so. The court rarely accepts such offers.
- Concede points that are difficult but not necessary to your position, but don’t concede points that concede your case. Sometimes a judge will say something like, “If we find so-and-so, you lose, right?” The answer must be either, “Yes, but the court shouldn’t find so-and-so because . . . ,” or, “No, your honor, if you find so-and-so, we still win because . . . .”
- If it is your first time to the court of appeals, observe one or two arguments before your argument, even if you have to attend another day to do so. Although I have attended many oral arguments, I still prefer to be second on the argument calendar so that I may observe one argument to get “the tempo” of the panel that day.
- Parking. There is usually plenty of adequate parking right outside the main doors to the Supreme Court building and, as of November 2015, the coin-fed parking meetings have been replaced. You no longer need to bring a stash of quarters – you can now pay by debit or credit card!