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Oral Argument” Oral Argument” Gerry Schulze Gerry Schulze Eubanks, Baker & Schulze Eubanks, Baker & Schulze Arkansas Trial Lawyers’ Arkansas Trial Lawyers’ Association Association Appellate Advocacy Seminar Appellate Advocacy Seminar

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This is a presentation about oral argument before appellate courts.

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Page 1: Oral Argument

““Oral Argument”Oral Argument”

Gerry SchulzeGerry SchulzeEubanks, Baker & SchulzeEubanks, Baker & Schulze

Arkansas Trial Lawyers’ AssociationArkansas Trial Lawyers’ AssociationAppellate Advocacy SeminarAppellate Advocacy Seminar

Page 2: Oral Argument

The Most Fun You Can Have While The Most Fun You Can Have While Practicing Law: Oral ArgumentsPracticing Law: Oral Arguments

Oral arguments are getting rarer.Oral arguments are getting rarer.

Sometimes that is a good thing, many Sometimes that is a good thing, many cases just don’t call for oral argumentcases just don’t call for oral argument

Some think it will be seen as a sign of Some think it will be seen as a sign of weakness or lack of confidence for an weakness or lack of confidence for an appellant to fail to request oral argumentappellant to fail to request oral argument– More true in St. Louis than here.More true in St. Louis than here.

Page 3: Oral Argument

How to request oral argumentsHow to request oral arguments

Arkansas: Any party may request oral argument Arkansas: Any party may request oral argument by filing, contemporaneously with that party's by filing, contemporaneously with that party's brief, a letter, separate from the brief, stating the brief, a letter, separate from the brief, stating the request with a copy to all parties. The request for request with a copy to all parties. The request for oral argument may be filed contemporaneously oral argument may be filed contemporaneously with either the party's initial brief or reply brief. with either the party's initial brief or reply brief. Rules of the Arkansas Supreme Court and Court Rules of the Arkansas Supreme Court and Court of Appeals, Rule 5-1.of Appeals, Rule 5-1.Federal Court: In the Eighth Circuit, a statement Federal Court: In the Eighth Circuit, a statement regarding oral argument is required in the brief. regarding oral argument is required in the brief. Rule 28A(f)(1).Rule 28A(f)(1).

Page 4: Oral Argument

If your request for oral argument is granted, you’ll get one of these letters.

GrantedGranted

Page 5: Oral Argument

Standards for Granting Oral Standards for Granting Oral Argument: ArkansasArgument: Arkansas

Rule 5-1 of the Rules of the Arkansas Supreme Court and Court of Appeals says that oral argument will be allowed unless:– 1) the appeal is frivolous;– 2) the dispositive issue or set of issues has

been decided authoritatively; or– 3) the briefs and record adequately present

the facts and legal arguments, and oral argument would not significantly aid the decision-making process.

Page 6: Oral Argument

More Restrictive than it Seems More Restrictive than it Seems from the Language of the Rulefrom the Language of the Rule

The case is reviewed for oral argument.The case is reviewed for oral argument.

Oral argument is the exception, not the Oral argument is the exception, not the rule.rule.

The court is more restrictive than it has The court is more restrictive than it has been in the past. been in the past.

Page 7: Oral Argument

What makes a case good for oral What makes a case good for oral argument?argument?

Unique or novel questionsUnique or novel questions

Confusing fact situationsConfusing fact situations

Need to ask questionsNeed to ask questions– I think this may be more important than we I think this may be more important than we

realize. realize. – This means, if you get an oral argument This means, if you get an oral argument

granted, it is probably because the a Judge, granted, it is probably because the a Judge, Justice, or staff attorney had a question that Justice, or staff attorney had a question that remained unanswered after reading the briefsremained unanswered after reading the briefs

Page 8: Oral Argument

Standards for granting Oral Standards for granting Oral Argument in Federal CourtArgument in Federal Court

Under Rule 34 of the Federal Rules of Under Rule 34 of the Federal Rules of Appellate Procedure, oral argument is Appellate Procedure, oral argument is allowed unless the judges unanimously allowed unless the judges unanimously agree that it is unnecessary for any of the agree that it is unnecessary for any of the following reasons:following reasons:– Appeal is frivolousAppeal is frivolous– The dispositive issue or issues have been The dispositive issue or issues have been

authoritatively decidedauthoritatively decided– The facts and argument are adequately The facts and argument are adequately

presented in the briefs.presented in the briefs.

Page 9: Oral Argument

Similar grounds treated differentlySimilar grounds treated differently

The federal preference is for oral The federal preference is for oral arguments.arguments.

In the Eighth Circuit, the chief judge In the Eighth Circuit, the chief judge appoints the senior staff attorney or a appoints the senior staff attorney or a panel or panels of judges to screen cases panel or panels of judges to screen cases for oral argument. Rule 34A.for oral argument. Rule 34A.

Page 10: Oral Argument

Purpose of Oral ArgumentPurpose of Oral Argument

There’s a question in someone’s mind.There’s a question in someone’s mind.

Figure out what that question is.Figure out what that question is.

Answer it.Answer it.

Page 11: Oral Argument

Ten CommandmentsTen Commandmentsof Oral Argument, by Judge Myron of Oral Argument, by Judge Myron

BrightBright

Know your customer, the courtKnow your customer, the court

A.B.P.—Always Be PreparedA.B.P.—Always Be Prepared

Go for the jugular.Go for the jugular.

Questions, questions, good and bad. Questions, questions, good and bad. Answer directly, then return to your main Answer directly, then return to your main theme.theme.

Be flexible and innovativeBe flexible and innovative

Page 12: Oral Argument

Ten CommandmentsTen Commandments

One lawyer is better than twoOne lawyer is better than two

Look up, speak upLook up, speak up

Don’t snatch defeat from the jaws of Don’t snatch defeat from the jaws of victory.victory.

Believe in your case and be natural.Believe in your case and be natural.

Above all, don’t kid yourself. Oral Above all, don’t kid yourself. Oral argument is important; indeed, it may be argument is important; indeed, it may be crucial.crucial.

Page 13: Oral Argument

Consider the needs of your Consider the needs of your audienceaudience

There’s a reason oral arguments were There’s a reason oral arguments were granted in your case.granted in your case.

Remember that the Court’s problems go Remember that the Court’s problems go far beyond yours. You want to win this far beyond yours. You want to win this case. The judges or justices want to get a case. The judges or justices want to get a result which will work in your case and the result which will work in your case and the others that will come along later.others that will come along later.

Page 14: Oral Argument

So how do you figure out what the So how do you figure out what the question is?question is?

Are your facts unusual?Are your facts unusual?

Is there a question of first impression?Is there a question of first impression?

Is there a new statute that is in need of Is there a new statute that is in need of interpretation?interpretation?

Has there been a change in the law that Has there been a change in the law that has impacted your case?has impacted your case?

Is there a policy question lurking in your Is there a policy question lurking in your case?case?

Page 15: Oral Argument

Frame your question properlyFrame your question properly

When possible, have a theme.When possible, have a theme.– Some say always have a theme, but sometimes it’s Some say always have a theme, but sometimes it’s

not possible, or the theme will be so contrived that it’s not possible, or the theme will be so contrived that it’s distracting.distracting.

– It will help if the court knows what the case is about It will help if the court knows what the case is about as soon as possible. Themes helpas soon as possible. Themes help

– But don’t let your facts and law get lost in your But don’t let your facts and law get lost in your analogy.analogy.

Page 16: Oral Argument

Frame your question effectivelyFrame your question effectively

If you can’t have a theme, at least have a question.If you can’t have a theme, at least have a question.

Frame your question with regard to both parties’ Frame your question with regard to both parties’ positions.positions.

Frame your question with regard to its consequences in Frame your question with regard to its consequences in the law as a whole.the law as a whole.

Frame it with sufficient precision that it is clear that a Frame it with sufficient precision that it is clear that a correct answer to the question will result in a decision in correct answer to the question will result in a decision in your favor.your favor.

Page 17: Oral Argument

Use your time wellUse your time well

Try to come up with a good starting minute or two.Try to come up with a good starting minute or two.

You only have 20 minutes. That usually goes faster than You only have 20 minutes. That usually goes faster than you’d think.you’d think.

You do not have to argue everything in your brief.You do not have to argue everything in your brief.

Provoke questions, they’re not an interruption, they’re Provoke questions, they’re not an interruption, they’re what you’re there to hear.what you’re there to hear.

If you If you do do get through, and you’ve said all you think needs get through, and you’ve said all you think needs to be said, invite questions and sit down. As with your to be said, invite questions and sit down. As with your brief, you are not required to fill your twenty minutes. brief, you are not required to fill your twenty minutes. This is not high school.This is not high school.

Page 18: Oral Argument

Answer the questionAnswer the question

Sometimes this is very difficult, but you Sometimes this is very difficult, but you have to try. Judges know when you evade have to try. Judges know when you evade the questionthe question– Make sure you listen to the questionMake sure you listen to the question– Make sure you understand it, as well as Make sure you understand it, as well as

possiblepossible– Answer it.Answer it.

Page 19: Oral Argument

Kinds of questionsKinds of questions

Friendly questions.Friendly questions.Hostile questions.Hostile questions.Questions that seem designed to send a Questions that seem designed to send a message to other Justices or Judges on message to other Justices or Judges on the Courtthe CourtIrrelevant questions.Irrelevant questions.– First answer the questionFirst answer the question– Then explain why it is not relevant to the Then explain why it is not relevant to the

case.case.

Page 20: Oral Argument

If you really don’t know the If you really don’t know the answer, don’t bluffanswer, don’t bluff

Sometimes, a member of the Court will think a Sometimes, a member of the Court will think a particular question is important to the resultparticular question is important to the resultIt may not be one you’ve thought of.It may not be one you’ve thought of.That member of the Court may not even be right. That member of the Court may not even be right. You have to depend on the others to set him or You have to depend on the others to set him or her straight in conference.her straight in conference.Still, if you absolutely don’t know the direct Still, if you absolutely don’t know the direct answer to a question, don’t bluff, say you don’t answer to a question, don’t bluff, say you don’t knowknowAnd only then say why you think it’s irrelevant.And only then say why you think it’s irrelevant.

Page 21: Oral Argument

The obvious stuffThe obvious stuff

Maintain your credibility.Maintain your credibility.– That’s not merely being honest, that’s That’s not merely being honest, that’s

knowing your record well enough you don’t knowing your record well enough you don’t inadvertently misrepresent it.inadvertently misrepresent it.

– Know the applicable law.Know the applicable law.

Don’t demean the trial judge or opposing Don’t demean the trial judge or opposing counsel.counsel.– ““Here the appellant abandons the strategy of Here the appellant abandons the strategy of

distorting the record in favor of lying about it.”distorting the record in favor of lying about it.”

Page 22: Oral Argument

The obvious stuffThe obvious stuff

Be comprehensible as possibleBe comprehensible as possible

Reread the cases. Don’t just rely on your Reread the cases. Don’t just rely on your discussion of the cases in your briefdiscussion of the cases in your brief

Re-Shepardize the cases at least a couple Re-Shepardize the cases at least a couple of weeks before the argumentsof weeks before the arguments– When you do re-Shepardize the cases, if you When you do re-Shepardize the cases, if you

find something new and on point, notify the find something new and on point, notify the Court and opposing counselCourt and opposing counsel

Page 23: Oral Argument

The obvious stuffThe obvious stuff

If you are the appellant, your argument If you are the appellant, your argument has to be the one you raised below and has to be the one you raised below and argued in your brief.argued in your brief.– There is sometimes room for extending the There is sometimes room for extending the

argument beyond the brief, but not far.argument beyond the brief, but not far.– Sometimes a question will force you to extend Sometimes a question will force you to extend

the argument beyond the briefsthe argument beyond the briefs

Appellees should also stick to their briefs, Appellees should also stick to their briefs, but remember the Court can affirm on but remember the Court can affirm on different grounds.different grounds.

Page 24: Oral Argument

The obvious stuffThe obvious stuff

Be prepared.Be prepared.Start early enough—it needs Start early enough—it needs to sink in.to sink in.Practice.Practice.– Mock oral arguments with other Mock oral arguments with other

members of firm or friendsmembers of firm or friends

Write out arguments, but don’t Write out arguments, but don’t plan to use them.plan to use them.Note location of most Note location of most important parts of record.important parts of record.

Page 25: Oral Argument

What do you want the Court to What do you want the Court to do?do?

Always tell the Court what you want the Always tell the Court what you want the Court to do.Court to do.

You would be surprised how obvious this You would be surprised how obvious this seems, but how easy this is to forget.seems, but how easy this is to forget.

Page 26: Oral Argument

Goal: A favorable decisionGoal: A favorable decision28 Mich.App. 294Lawrence DENNY Plaintiff-Appellantv. Docket No. 8422RADAR INDUSTRIES, INC. Defendant-Appellee..

Court of Appeals of Michigan, Div. 2Dec. 2, 1970

Released for Publication March 5, 1971

J. H. GILLIS, Judge.

The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich.App. 259, 169 N.W.2d 326. He didn't. We couldn't.Affirmed. Costs to appellee.

Page 27: Oral Argument

Questions?Questions?

If not, I should sit down now.If not, I should sit down now.

But not before giving the Court the chance But not before giving the Court the chance to ask any additional questions.to ask any additional questions.

Page 28: Oral Argument

Thank youThank you

Wait . . . . . I’ll leave you with a Wait . . . . . I’ll leave you with a final thought from final thought from Hall v. Hall v.

Brookshire, Brookshire, 285 S.W.2d 60 285 S.W.2d 60 (Mo. App. 1956)(Mo. App. 1956)

Page 29: Oral Argument

The last remaining point raised relates to the argument of plaintiff's counsel. It is contended that the argument was inflammatory, prejudicial, unethical and untrue. The transcript contains only extracts from Mr. Orr's argument which the defendant claims were prejudicial. . . . [N]ear the outset of the oratory of which the defendant complains learned counsel for the plaintiff stated:

Page 30: Oral Argument

‘You may remember when Christ was preaching the gospel, in the Holy Roman Empire that Julius Caesar was Emperor of Rome. As Christ was making his way toward Rome, the Mennonites and the Philistines stopped him in the road and they sought to entrap him. They asked Christ: ‘Shall we continue to pay tribute unto Caesar?’And you will remember, in the Book of St. Matthew it is written that Christ said: ‘Render ye unto Caesar the things that are Caesar's and unto God the things that are God's.’

Page 31: Oral Argument

The Holy Roman Empire did not come into existence until about 800 years after Christ. Julius Caesar, who was never Emperor of Rome, was dead before Christ was born. Christ was never on His way to Rome and the Philistines had disappeared from Palestine before the birth of Christ. The Mennonites are a devout Protestant sect that arose in the Sixteenth Century A. D. This phrase is noteworthy only because of the ease with which the speaker crowded into one short paragraph such an abundance of misinformation. It is not, however, even pendulously attached to the argument following, which deals with taking from Brookshire and rendering unto Hall.

Id. at 67-68.