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.