While it may not change the outcome, an opportunity to present your case before an appellate panel should not be missed or taken lightly, explains Gary Watt of Archer Norris.
This article is reprinted with permission from the August 2, 2013 edition of The Recorder.
by Gary Watt
Much has been written about whether oral argument really makes any difference. Win or lose, good oral argument does. Effective oral advocacy makes a difference to the clients, the courts and sometimes, even the outcome. The question should not be can oral argument win the case. Occasionally, it will. The question should be can oral argument help the cause. The answer is almost always "yes."
"Read 'em and weep" is probably an apt description for the losing party after the appellate court's decision is announced. Given that eventuality, oral argument presents the one and only opportunity for the advocates to come face-to-face with the judges and test the court's view of the issues before the fateful moment. As one appellate court put it, oral argument can "clear the air" and "is often as effective as a catalytic converter" for doing so. TJX Cos., Inc. v. Superior Court, 87 Cal. App. 4th 747 (2001). As another court put it, oral argument presents an "opportunity to go straight to the heart!" Mediterranean Constr. Co. v. State Farm Fire & Casualty Co., 66 Cal.App.4th 257 (1998).
Good oral argument can crystalize the issues and for the moment — however fleeting — engage the court in a discussion on the crux of the matter. There will only be one other time to learn the court's views, but those views should not come as a shock if oral argument has been effectively utilized. For those thinking of waiving oral argument, why should clients be kept in the dark until an adverse decision comes out? Having the client attend the oral argument, and briefing the client on what the tea leaves indicate afterward, can be a very effective way to further the professional relationship. There is little to be gained by waiting for a decision before discussing defeat.
Of course, in some federal appeals, there will be no opportunity for oral argument. But in the California state appellate courts, oral argument is a right. But whatever forum oral argument is in, embrace the opportunity and go all out. "A lively interchange between counsel and the bench, not possible by the submission of written briefs, may lead a judge to rethink his or her position and even alter the outcome of the proceeding." Lewis v. Superior Court, 19 Cal.4th 1232 (1999) [Kennard, J., dissenting].
There are caveats, of course, on the definition of a "lively interchange." Some interchanges are lively, but hardly productive. Fist pounding, name calling, and other histrionics are the wrong kind of lively. Resist the temptation to attack the trial court judge, opposing counsel or the appellate court. And enthusiasm must not result in talking over the judges, or worse, cutting them off. Otherwise, a different kind of lively interchange may arise and at great cost in terms of precious minutes lost and long-term credibility.
Perhaps one way to thoughtfully approach preparation for oral argument is to consider what a favorable decision would look like. Even federal circuit mem-dispos state more than just "you win, you lose." How does the answer to that question affect the oral argument? Inherent in any answer is how well a favorable decision fits within existing precedent, how far the decision might extend, the policy implications of such extension, and so on. Will a favorable decision be a house of cards or a solid edifice? Find the edifice, and then describe its key features at oral argument. Of course, intimate knowledge of the record and the law is essential. Chief Justice William H. Rehnquist once told an advocate: your performance "made us gravely wonder, you know, how well-prepared you were for this argument." Oral Arg. Tr., Shalala v. Whitecotton, No. 94-372, 1995 WL 116213 (Mar. 13, 1995).
At oral argument, dive right in. Welcome the questions and embrace hypotheticals. Give direct, not winding answers. Trust in your ability to explain and distinguish. As Chief Justice John G. Roberts, Jr. once said, "Oral argument is not some quiz show, in which you win so long as you avoid any pitfalls the judges may try to spring on you." Thoughts on Presenting an Effective Oral Argument, School Law in Review 1997, available at www.nsba.org. As Circuit Judge Harry Pregerson stated, "Your primary job at oral argument is to answer the judges' questions carefully." The Seven Deadly Sins of Appellate Brief Writing and Other Transgressions, 34 UCLA L. Rev. 431, 440. Above all — no matter how tough the sledding — engage in conversation. Argument is just an expression. As Ninth Circuit Chief Judge Alex Kozinski put it, "arguing gains enmity, whereas intelligent respectful discussion gains respect." The Wrong Stuff, 1992 B.Y.U. L. Rev. 325, 331 (1992).
Some critics of oral argument observe that if it could actually change the outcome, it would speak very poorly of the lawyer's briefs. But as long as there is oral argument, why not embrace it for what it can be, rather than denigrate it for what it frequently cannot achieve? Oral argument can be a supplement to the well-written brief. Oral argument can provide an opportunity to advise the client of the probable and very personal outcome. In some instances, oral argument may be the catalyst for settlement. And now and then, if enthusiastically embraced, "oral argument may lift up the fallen" instead of "caus[ing] the tottering to fall." TJX Cos., Inc.
Gary A. Watt is a partner with Archer Norris and a State Bar approved certified appellate specialist. In addition to writs and appeals, he is also retained for summary judgment and post-trial motions, etc. He is director and supervising attorney for UC Hastings' Ninth Circuit clinical program, The Hastings Appellate Project, and chair of the Contra Costa County Bar Association's appellate practice section. He can be reached at email@example.com and his blog posts found at www.caappellatelaw.com.