Step 5: Oral argument

Who can make an oral argument

Any party—whether appellant or respondent—who filed a brief that was accepted by the Court of Appeal is eligible to make an oral argument.

Note: If the respondent did not file a brief, they cannot make an oral argument.

Timeline of oral argument

After all briefs are filed or the time to file them has passed, the Court of Appeal will contact each eligible party to see if they want to participate in oral argument. Sometimes, the notice will include a date for the oral argument; other times, it may not.

When the court sends out the notice, each party must inform the court if they want to make an oral argument. A party must respond in writing by the deadline provided in the notice. If any party requests an oral argument, the court will schedule it for the case.

At least 20 days before the oral argument, the court will send all parties a notice that includes the date, time, and location of the oral argument.

Cost of presenting an oral argument

There is no additional court cost to make an oral argument.

Deciding whether to make an oral argument

In most cases, oral argument is optional and is a small part of the appeal process. While oral argument can be helpful in some situations, it is generally less important to the court’s decision than the briefs and the record on appeal.

Both the appellant and the respondent can choose to make an oral argument or decide to waive (give up) the opportunity for one.

Reasons to make an oral argument

• To explain something in a brief.
• To discuss an argument made in any party’s brief.
• To highlight the most important issues in the appeal.
• To give the justices a chance to ask questions.
• To talk about new legal authorities that support an argument in a brief. If you plan to discuss new legal authorities, you should inform the court and other parties about that authority.

Reasons not to make an oral argument

• There is nothing new or different to add to what’s already in the brief.
• The arguments and issues are fully explained in the brief.
• A party does not want to answer questions from the justices.
• A party wants to discuss a new legal issue or new evidence (this is not allowed in oral argument).

Important things to know

• If a party chooses not to make an oral argument, it does not affect how the court views that party or their argument in the appeal.
• Not all parties have to make the same choice. If only one party wants to present an oral argument, the court will hold oral argument for the case. The other parties will be able to participate if they want to.
• If a party has a lawyer, then the lawyer will present the oral argument. The party is not required to attend the oral argument if represented by a lawyer.
• Many appeals do not include oral argument because all parties waive the opportunity. In such cases, the Court of Appeal justices decide the appeal based on the briefs and the record on appeal.
• In most courts, oral argument does not slow down or speed up the appeal process.
• Making an oral argument may or may not help a party's case in the appeal. There is no way to predict its impact in advance.
• If the appellant decides not to make an oral argument, the respondent usually also does not present one, as the law favors the respondent in appeals.
• While rare, there are instances where the Court of Appeal may require a party to participate in oral argument, especially if the court has specific questions for that party.

Telling the court if you will make an oral argument

The Court of Appeal allows oral argument in every appeal case. However, the court will only schedule time for oral argument if it receives notice from parties who want to participate.

When to tell the court

When a party receives notice about oral argument from the Court of Appeal, they must respond by the deadline specified in the notice.

How to tell the court

• To say yes and participate in an oral argument, a party must inform the Court of Appeal by the deadline given in the court’s notice. This must be done in writing.
• To say no and not participate in an oral argument, a party can simply do nothing. If the court does not receive a response, it will assume that the party is waiving oral argument.

What to expect during oral argument

During oral argument, you have a limited amount of time to speak with the Court of Appeal justices and answer their questions, so it’s important to be well-prepared.

Before the oral argument, a party should spend time getting ready. This includes reviewing the record on appeal, all the briefs, and the most important legal authorities.

What to talk about

Here are some general rules about what an appellant or respondent should and should not discuss during oral argument:

Do:

• Focus on the legal issues in the appeal.
• Explain the arguments made in your brief.
• Discuss the legal issues that are in your brief.
• Clarify any issues mentioned in your brief.
• Address legal issues or arguments found in the other party’s brief.
• Talk about new legal authorities, such as a recent case or a change in the law (you must notify the court of new legal authorities before oral argument).
• Tell the justices what you believe is most important in your appeal.
• Ask the justices if they have questions for you.

Do not:

• Talk about new evidence.
• Introduce new legal issues or arguments that are not included in any of the briefs.
• Read your brief out loud.
• Repeat what’s in your brief word-for-word.
• Rehash or argue the facts of the case.

How much time to talk

The court sends a notice in advance to each party participating in oral argument. This notice specifies how much time the party will have to speak. Generally, each party has between 15 and 30 minutes for oral argument. This time also includes questions from the justices and your responses to those questions.

If a party has a lawyer, the lawyer will speak during the oral argument.

What to expect from the justices

The justices of the Court of Appeal prepare for oral argument similarly to the parties. They fully review the record on appeal, so they understand what happened in the trial court. The justices also read all the briefs and research the legal authorities, so they are familiar with the legal issues involved in the appeal. During oral argument, the justices will listen to the parties and may ask questions.