• Why Oral Argument?
  • September 19, 2013
  • Law Firm: Carroll Burdick McDonough LLP - San Francisco Office
  • Why Oral Argument?

    Why spend so many hours preparing for what is typically a 15-30 minute appearance in court? Oral argument is "inefficient" by any usual measure. But it is also necessary in most cases, and a valuable luxury in plenty more.

    Why is it inefficient?

    • Oral argument costs a lot of money to do even "acceptably" well. Attorneys appearing for argument must be ready to answer any question the justices have about any aspect of the record, the relevant law, or either side's arguments -- without benefit of any advance tentative ruling (except in one stalwart division in southern California). And they must have a powerful statement of their clients' position to offer in between questions. Serious preparation time is essential.
    • But oral argument rarely changes the outcome of an appeal. An opinion is always drafted prior to oral argument, because of California's law withholding the pay of any justice responsible for a case "under submission" longer than 90 days. That 90-day clock starts running after oral argument.

    So why is oral argument necessary in most cases?

    • Unlike in the federal system, the Appellant has a right to oral argument in California appellate courts, if requested. So if you are the Respondent, you'll rarely have a choice: Appellants almost always request argument, with or without careful thought.
    • As the Appellant, you can waive oral argument, and in rare cases, clients should seriously consider it. But: oral argument can change at least some features of an opinion, and occasionally it even changes the result. You have no other way of knowing about a serious misunderstanding the Court may have until it's too late.
    • And most fundamentally: litigants want to be "heard." Briefs rarely give that satisfaction. A face-to-face talk with the people making the decision usually does -- win or lose.
    • The practical message: The costs of oral argument can be disproportionate, and the benefits intangible. But there is no substitute.