Virtually all writers on appellate practice stress the importance of oral argument. Just as trial attorneys would not consider passing up the opportunity to make a closing argument to the jury, appellate counsel should avail themselves of this important vehicle for persuading the court. Oral argument provides the last and best chance to answer any questions the briefs may have raised in the minds of the judges. Since the judges usually conference the case shortly after the argument, impressions gained during the argument will be fresh in their minds. The default should almost always be to opt for oral argument in cases where the court rules permit it.
First, some mechanics. Oral argument in the Court of Appeals is governed by Section 500.18 of the court’s Rules of Practice. Oral argument in the Appellate Division is governed by Section 1250.15 of the Practice Rules of the Appellate Division (the Uniform Rules). In addition, each Department has promulgated its own local rules pertaining to oral argument that supplement the Uniform Rules (see §§600.15 [First], 670.15 [Second], 850.15 [Third] and 1000.15 [Fourth]) (the Local Rules).
The Local Rules pertaining to oral argument come into play at the brief-filing stage of an appeal, when requests for argument are made. These rules differ by department. For example, all four departments prohibit oral argument in appeals involving certain procedural and substantive issues except by permission of the court, which is rarely granted. Each department, however, has promulgated its own distinct list of matters in which argument is not permitted.
In the First Department, argument is not permitted in “non-enumerated appeals” (§600.15[a] and [e]). The Second Department has its own version of non-enumerated appeals, although not denominated as such, in which argument is not permitted (§670.15 [b]). The Third Department does not permit argument in appeals from the Worker’s Compensation Board, the Unemployment Insurance Appeal Board, criminal appeals challenging only the sentence imposed, and certain Article 78 proceedings (§850.15[a-d]).
In the Fourth Department, argument is not permitted incriminal appeals challenging only the sentence imposed, determinations pursuant to the Sex Offender Registration Act, and certain Article 78 proceedings (§1000.15[d]). Each department retains discretion to prohibit oral argument in any case in which the court determines that argument is not warranted.
Preparing for the Argument
It is important to note the difference between an appellate brief and oral argument. The late Archibald Cox, a former Solicitor General of the United States, observed that the role of a brief is to give the court ammunition to decide the case in your favor, while the role of oral argument is to persuade the court to do so. An argument that merely rehashes your brief is counter-productive, and will likely be shut down by the court in short order.
In some courts, there may be long delay between the filing of briefs and the oral argument. You should begin your preparation by re-reading the record on appeal and all of the briefs. It is useful to “tab” the record by placing page markers on the most important pages, especially those about which the court is likely to inquire and to which counsel must have immediate access during the argument. Copies of the most important pages in the record should be placed in an argument binder. It is embarrassing, and a waste of your allotted argument time, to have to fumble through the record looking for a page cite in response to a question from the court. Seconds seem like hours when this occurs, and often results in the court instructing you to “move on” without having supplied the relevant record cite.
The next order of business is to prepare an outline of the argument. Preliminarily, the outline must take into account the time constraints on oral argument in the court rules. The maximum argument time for each party that filed a brief is 30 minutes in the Court of Appeals and 15 minutes in the Appellate Division, respectively, unless the court orders otherwise. As a practical matter, however, the courts routinely assign less time for argument—usually five to ten minutes per party, including rebuttal, if any—in all but the most complex cases.
In drafting the outline (and making your presentation in court), you should presume the court’s familiarity with the facts, procedural history and legal issues the appeal presents (the “hot bench”). A good starting point for the outline is the table of contents in the brief, which should be sufficiently descriptive of your arguments to lend itself to the outline process.
The outline must distill your case to its essence, launching right into the truly important parts of the case with the strongest points first. Subsidiary issues and points of lesser importance should be eliminated. Experienced appellate advocates can usually reduce the main outline of their entire argument to one or two pages, such that it basically serves as a mental cue for each point they wish to make. It may also be useful to prepare separate one-page outlines on particular topics, with relevant record and case citations, for ease of reference in the event of specific questions from the bench on these topics. Copies of the most important cases and other authorities should be annotated and placed in the argument binder.
After completion of the outline(s), you should conduct moot courts with experienced appellate advocates who know the case. Well-executed moot courts serve three important purposes: They help you practice your timing to condense your presentation into the allotted argument time, inclusive of likely questions from the bench; they expose weaknesses in specific arguments, or the manner in which they are presented; and perhaps most important, they force you to anticipate and rehearse responses to obvious and not-so-obvious questions and hypotheticals posed by the moot court “judges.” The NYSBA Committee on Courts of Appellate Jurisdiction can be contacted to arrange a moot court for arguments in the Court of Appeals.
In some departments of the Appellate Division, the composition of the panel that will hear your appeal is not published until a day or two before the argument. Once you know the make-up of the panel, you should update the legal research in your brief, focusing on relevant prior decisions, if any, from the judges assigned to the panel. This enables you to emphasize favorable prior decisions from the panel members, or distinguish adverse decisions, in response to specific questions. Updated research may also disclose new case or statutory authorities, i.e., ones that arose subsequent to the filing of your brief, that you wish to bring to the court’s attention. In such event, you must inform the court by letter, a copy of which is contemporaneously provided to the other parties to the appeal, of the citation without additional argument (see, e.g., §670.15[b]). Absent such advance notice to the court and your opponent, you will not be permitted to discuss these recent authorities during your argument.
Presenting the Argument
As noted, the court will be familiar with the facts, procedural history and legal issues the appeal presents. After introducing yourself and identifying the client being represented, you should open with your strongest point. If there is a cardinal thought you want the court to take away from your argument, you should immediately state it in a sentence or two because the judges’ questions often start soon into the argument.
In his seminal lecture on appellate advocacy, The Argument of an Appeal, 26 ABA J. 895 (1940), available at 3 J. App. Prac. & Process 745 (2001), John W. Davis exhorted counsel to “rejoice when the court asks questions” since “a question affords you your only chance to penetrate the mind of the court, unless you are an expert in face reading, and to dispel a doubt as soon as it arises. This you should be able to do if you know your case and have a sound position” (id. at 752-53).
Counsel should answer questions from the bench immediately, even if it means deviating from the argument outline; “I’ll come to that later, Your Honor” raises an inference of weakness in your position and frustrates the bench. Notwithstanding the stated time limitations, if the judges wish to continue a line of questioning, they will do so until they are satisfied that their questions have been answered.
Appellate courts often employ hypothetical questions to explore the legal or policy implications of a decision in other matters beyond your particular case. While some hypotheticals come from left field, many can be anticipated through proper preparation and the moot court process. Indeed, well-written briefs often address the ramifications of a decision in future cases. Admonishing the court that the hypothetical is “not this case” does nothing to advance your position. The better practice is to answer the hypothetical question as best you can, explain your answer, and only then point out any differences between your case and the hypothetical.
Questions and hypotheticals from the court underscore that an appellate argument more closely resembles a conversation with the judges than a speech. Reading from your outline should be avoided at all costs. As noted, if you have mastered the record and practiced your arguments, then your outline will serve as prompts for the points you wish to make. Likewise, reading long passages from the record on appeal or from cases, especially those standing for generic legal propositions, is a sure way to lose the court’s attention. The better practice is to identify the relevant case or record citation, and then summarize it in a sentence or two.
While everything to this point applies to the respondent’s argument as well as the appellant’s, even more flexibility is required on the part of the respondent’s counsel. The benefit of going second is that the appellant’s argument usually reveals the judges’ thoughts and concerns. Having listened to the colloquy between the appellant’s counsel and the court, the respondent’s counsel has an opportunity to address these concerns and formulate his or her own answers to the panel’s questions and hypotheticals. This said, it is a mistake to assume that the court has rejected one or more of the appellant’s arguments simply because it asked the appellant’s counsel some tough questions with respect to them. Since the court may have problems with both sides of an argument, the respondent’s counsel should never abandon the strongest responsive points in the argument outline.
Prior to beginning argument in the Court of Appeals and First and Third Departments, the appellant’s counsel may orally request permission to reserve a specific number of minutes for rebuttal, which is subtracted from the total allotted time (§§500.18[c], 1250.15[c]). The Second Department does not permit rebuttal argument, except by permission of the court given at the time of argument (§670.15[f]). The Fourth Department does not permit rebuttal (§1000.15[d]).
While it is always tempting to have the last word, rebuttal should never be used to regurgitate your opening arguments or attempt a point-by-point response to the respondent’s argument. Experienced appellate advocates confine rebuttal, if any, to a minute or two. They only use rebuttal, if at all, to provide a better reply to a central question posed for the first time during the respondent’s argument or to clarify the record on a central point. There is no dishonor in relinquishing previously-reserved rebuttal that would not serve either purpose. On the contrary, it bespeaks confidence in your position to do so.
Thomas R. Newman is of counsel to Duane Morris and author of “New York Appellate Practice” (Matthew Bender). Steven J. Ahmuty Jr. is retired from Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.