Oral argument is a frequent topic of discussion at every CLE presentation and bench-bar networking event. Appellate attorneys want to know how they can get oral argument granted more often, and they want to know how they can use oral argument to their client’s best advantage. Lawyers seem hesitant to accept that the vast majority of advocacy at the appellate level must happen in writing. But, for the few cases where oral argument might be appropriate, being able to determine when you have a case in which oral argument would be helpful, or even necessary, is the first step in getting a request for oral argument granted.
There are a variety of reasons why courts do not grant oral argument as often as attorneys would like. Most of them boil down to one prime consideration: economy of judicial resources. The First Court of Appeals sees more than one thousand cases filed each fiscal year. There simply is not enough time to prepare for and hear oral argument in even half of those cases and then resolve them with any degree of efficiency. And the reality is that, in most cases, oral argument is simply not necessary—or even helpful—in resolving the issues raised by the parties. It is frustrating for judges to listen to attorneys rehash arguments made just as effectively in the briefing, or worse, to have the issues even more muddled after argument than they were before.
The all-important first step to getting oral argument is determining whether your case is an appropriate candidate. Courts are more willing to invest the time and resources involved in hearing oral argument in complex cases—such as cases involving multi-party, long-term business relationships; cases implicating complicated regulatory or administrative schemes; or cases construing voluminous contracts. Oral argument is also helpful in cases that are novel in some respect, whether because they present unique facts that do not fit neatly into standards set by established authority, involve interpretation of new statutes or case law, or require application of niche law. Courts understand that each case is significant to the parties and attorneys involved in it, but oral argument will not be appropriate in frivolous or relatively simple cases. Nor will courts grant requests for oral argument in cases where the dispositive issues are adequately presented by the briefing and well-established authority. See TEX. R. APP. P. 39.1.
Courts appreciate the effort attorneys put into making realistic evaluations regarding whether and why their cases are appropriate for oral argument. This is especially valuable for an appellee to keep in mind—you might be able to save your clients time and money by clearly stating why the case does NOT merit oral argument.
Another practical tip: if you want oral argument, you must say so. Although courts “may direct [a] party to appear and argue” even if it has waived oral argument by failing to request it on the front cover of the brief (see TEX. R. APP. P. 39.7), they almost never do. Texas Rule of Appellate Procedure 38.1(e) provides that briefs “may” include a statement explaining why oral argument should or should not be permitted, but a better practice is to consider a well-crafted statement regarding oral argument as necessary to obtaining it (or, in some cases, to resisting it when it would not benefit your client).
In writing your statement regarding oral argument, you must clearly and succinctly explain the significance of your issues (or the non-significance of your opponent’s issues). See TEX. R. APP. P. 38.1(e) (limiting statement regarding oral argument to no more than one page). Appellate attorneys frequently waste the opportunity presented in this portion of the brief by stating in a conclusory fashion that “oral argument would greatly aid the Court’s decisional process in this complex case.” Be specific when setting out the precise nature of the case’s complexity or novelty. Point out the nuances of the case that might be hard to spot on an initial reading or the specific contractual or statutory language that presents a unique challenge. Do not underestimate the importance of the rest of your brief in convincing a court that oral argument is warranted. Briefs that reflect a solid appellate strategy and clear legal argument inspire confidence in the ability of the practitioner to present an effective and helpful oral argument.
Effective use of oral argument requires that you consider the purpose of oral argument. Keep in mind that, even when oral argument is helpful, it is almost never dispositive. The judges hearing the case have already read the briefs, and usually at least some portions of the record, prior to taking the bench at oral argument. In most cases, judges already have developed some thoughts regarding how they are going to rule heading into oral argument, and the lawyers’ efforts serve to clarify or elucidate arguments already raised in the briefs.
Finally, make the most of your oral argument by focusing on your case’s central issues. Trust your briefing to address the minutiae of the case and use your precious time to focus the panel’s attention on the most important factors in your case, including clearing up any vague, confusing, or weak arguments. Oral argument is a great opportunity to expand on your strongest authorities, explaining in detail why and how they help your case, and it is the time to provide the court with the information it needs to address the weaknesses in your case. Be prepared to answer questions and actually answer the questions that are asked—know the record and controlling law thoroughly. And be courteous to the Court and your opponents.
Although courts may not grant oral argument as often as appellate attorneys might wish, understanding the factors that courts consider in granting oral argument will improve your odds of getting oral argument granted in your case. And careful consideration of the role oral argument can play in your case will improve your odds of winning on appeal.