Oral argument before the 4/3

At a recent luncheon for the OCBA's Appellate Section, Presiding Justice Sills spoke on the state of Division Three of the Fourth Appellate District.  He has been a regular almost every year and gives us the current news about procedures in the Clerk's Office.

This time he spoke about oral argument and suggested that we might want to help attorneys who are new to the Court of Appeal.   The errors he observed were pretty basic and I am sure they could be cured by attending a session of oral argument in advance of your appearance.

Watching oral argument is helpful on many levels.  Since you are not arguing your case, you have the freedom to observe what goes on without the pressure of being prepared to argue.  Watch the justices respond.  Are they engaged?  Are they asking questions?  How effective is the presentation?

When you arrive for oral argument in Santa Ana, chances are the courtroom will be locked until it is time for check-in.  Arrive in time to relax and check in. The attorneys are free to wait in the lobby area.  A calendar is posted and you can get some idea how many cases or panel changes are on calendar.

After the courtroom is opened, the bailiff will stop you at the weapons detector.  Once you have passed that gauntlet, you can enter the courtroom and approach the clerk.  Bring a few business cards.  At that point, you will  be asked for a new estimate for oral argument.

There are a few good reasons to keep your oral argument short.  One of the best is that the shorter your estimate, the higher you rise on the calendar.  Another is that everybody is happy with a shorter argument.  My experience is that if the justices want to hear more from you, they will keep you there until they have heard all they want to hear, no matter what your time estimate is.

If your client is attending, have the client sit in the audience section.  When your case is called, the client does not go up there with you.  Even if you have co-counsel, they should also stay behind unless they are going to assist you with the oral argument.  (Only one person gets to speak!)

If you are the appellant, you will go to the table on the left side, respondents to the right.  Everyone may know who you are, but introductions - name and who you represent - are a good idea.  "May It Please the Court" is a formal opening; some justices prefer it, others don't care.  Tell the court what you are going to talk about.  (Don't talk about every issue; be selective and pick your best issue.)

Answer the questions asked of you by the justices.  Questions present a great opportunity to focus on the important aspects of an issue.  Don't read your oral argument!  How can you engage the Court if you are looking down at your paper?  An outline should be enough to remind you of what you want to say.

Don't close with "If you have any question, . . ."  (Yes, I've done it too.)  Finish with a statement about why the lower court erred, or was right, and what the Court of Appeal should do.

When the Court announces the matter is submitted, you are free to leave.  Don't linger outside the courtroom; the sound carries.  And be courteous to opposing counsel, no matter what was said during oral argument.