After it has reviewed the briefs, the Court of Appeal will
send a notice to counsel asking if oral argument is desired.
A party has an absolute right to orally argue the merits of
an appeal. (People v. Brigham (1979) 25 Cal.3d 283, 285-289.)
Under Sixth District practice, oral argument will be deemed
waived unless it is requested in writing within 10 days of
the courtís notice.
The decision whether to request oral argument must be case
specific. In our view, oral argument can be an important and
helpful part of appellate representation. Many appellate justices
agree. Thus, counsel should carefully consider whether a particular
case should be orally argued. Factors that should be considered
are your skills as an oral advocate, whether you feel you
have a clear advantage at the close of briefing, and the need
to discuss important new authority issued since the close
of briefing. Also, if a speedy resolution is vital, waiver
may be appropriate because requesting oral argument usually
entails some delay in the submission of the case.
In essence, when you request oral argument, you are implicitly
saying to the court that there is an issue in the case which
is important to the client's interests, and has more than
minimal arguable merit. If, after preparing for and listening
to the argument, the court strongly disagrees with you on
either point, your reception is likely to be a chilly one.
For example, if the issue in the case is weak, there is little
potential benefit to attending oral argument. Also, if the
issue is very simple, and you have nothing to add to the brief,
a waiver is in order. Do not request oral argument in such
a case, merely to stand up and ask if there are any questions.
Usually there will not be, and the court will wonder why you
requested argument if you had nothing to say. Also, if the
remedy requested in the appeal is very minor, like the staying
of a concurrent term, or the striking of a small fine, a waiver
is indicated. The costs of oral argument in court preparation
and in time and travel costs for both counsel are substantial,
and should not be incurred in a case where there is little
Once oral argument is requested, it should not later be waived
absent a change in circumstances. Requesting oral argument
causes the court, its staff, and opposing counsel to prepare
for the requested argument. A late waiver inevitably causes
other people to waste their time. It also serves as a red
flag that, on further consideration, counsel does not believe
the case is very strong.
If illness or some other truly unforeseeable circumstance
makes you unable to attend an oral argument, communicate the
information as soon as possible to opposing counsel and to
the clerk of the court. File a motion for a continued oral
argument date. Be specific as to the circumstance which prevents
your attendance. Do not offer to waive unless the client would
be prejudiced by the delay. If the case was worth arguing
in the first place, it should be worth arguing at a continued
Where only one appellant in a multiple appellant case requests
argument, the Sixth District's position is that other appellants
are not entitled to participate because they have not responded
to the court's waiver letter. To protect your right to argue,
you must separately request that the matter be placed on calendar
for oral argument. Do not rely on a co-appellant's request.
Prior to oral argument, reread the briefs and crucial parts
of the record. Shepardize your main case law authority, and
that of the opposition, to see if any new cases on the issue
have been published since the briefing. Check any very recent
authority in the cumulative subsequent history table or the
appellate courtsí website, to see if review has been granted
or depublication ordered.
If you should find any new authority or determine that a case
has been depublished, it is your duty to notify the Court
of Appeal in advance of the date set for oral argument. Counsel
should submit a concise letter to the court which cites the
authority in question and which briefly explains its relevance
to the issue or issues at hand. A copy of the letter should
be served on opposing counsel.
After reimmersing yourself in the case, evaluate your issues.
Which issues have the most potential for a favorable result
for your client? Concentrate on those issues that have a realistic
possibility of success. Streamline and reduce your argument
to the minimum elements necessary to prevail. By doing this,
you map the most direct route to success. You have an analytical
framework which gives you coherence, direction, and logical
While it is important to stress your strong points, it is
vital that you prepare for difficult questions on your weak
points. Figure out your weaknesses, and prepare a response
for the most difficult questions you could formulate were
you on the other side. Have an answer ready.
Having decided which issues you are going to address, and
having outlined the essential elements of each argument, do
a practice run. In translating your notes and thoughts to
a smooth verbal presentation, you will find that there are
rough spots which need work. Time yourself, so you can give
the court a reasonably accurate estimate of the length of
your argument. Although the rules allow you up to 30 minutes
of oral argument (Cal. Rules of Ct., rule 8.256(c)(2)), the court
will become restless if your comments are redundant or unfocused.
As you begin your oral argument in court, tell the court what
issues you intend to discuss, and in what order. Introduce
each argument with whatever color or verve can be mustered.
Seize on an unusual fact pattern that will distinguish your
case from the others on the court's calendar. Present your
streamlined version of the argument.
Despite the fact that you have prepared a beautiful monologue
argument, do not hesitate to leave it in response to questioning
from the bench. Through the questioning you are gaining valuable
information about what is significant to the judge, the decision
maker. Go directly to the area of the judge's concern.
Do not be afraid to tactfully and respectfully take issue
with a judge's version of the facts or reasoning, if that
version is in error. Many times the judge will make a factual
assumption or throw out a line of reasoning that is dangerous
to your position. To respond properly in these situations,
you should be armed with a record citation or contrary case
authority. Do not be deferential toward a misreading of the
facts or erroneous legal reasoning. It is your last chance,
short of a petition for rehearing, to show the court any factual
or legal errors in its approach to the case.
Listen carefully to your opponent's argument and the questions
directed to your opponent. Again, a little extrapolation from
the judge's questions will generally tell you the tentative
thinking of the court. If the court gave your opponent a hard
time on a particular point, see if you can press the point
home even further in rebuttal.