Oral Argument
Oral argument is not a time to restate the facts of the case or repeat parts of the brief. The judges know what you said in your brief. Oral argument is the time to make sure that the court understands the key issues of the case.
You do not have to participate in oral argument if you do not want to. You can let the appellate court know that you want to "waive" (give up) oral argument. See the "Waiving oral argument" section below to find out how.
If you do choose to have oral argument and your case is in the appellate division of the superior court, you will have up to 10 minutes to present your argument (unless the court gives you more or less time). If your case is in the Court of Appeal, you will have up to 30 minutes to present your argument (unless the court gives you more or less time).
Click to hear oral arguments at the California Supreme Court. (Note that these oral arguments are before the California Supreme Court, but they will give you a good idea of what to expect in other appellate courts).
Oral argument is not a chance to read a prepared statement out loud or to talk about what is in the brief. If everything you want to argue is in the brief, then you should think about not participating in (waiving) oral argument. If you want to orally argue, be prepared and flexible — the judges may interrupt you (and the other side) to ask questions about your case and the laws and other cases that you cited or should have cited.
Remember that the judges will have already read the briefs, so it is not necessary to read your brief to the judges. It is more helpful to the judges to just highlight what you think is most important in your case or ask the judges if they have any questions you could answer.
Waiving oral argument
If only one side waives (gives up) oral argument, the appellate court will hold oral argument with the other side. If everyone waives oral argument, the judges will consider your appeal based on the briefs and the record that were submitted.
To let the court in writing or in person know that you do not want to have oral argument:
- Once all the briefs have been filed or the time to file them has passed, the court will send you a notice with the date for oral argument and will probably ask you if you want to have oral argument. At that time, you can let the appellate court know that you want to waive oral argument.
- If the court sends you a notice asking you if you want to participate in oral argument and if you do NOT respond, the court will assume you are waiving your oral argument.
Asking to have oral argument
Once all the briefs have been filed or the time to file them has passed, the court will send you a notice with the date for oral argument and probably will ask you if you want to argue the case orally.
If you want to participate in oral argument, let the court know that in writing or in person. If you do NOT let the court know you want oral argument, it will assume you do not want to have it and you will lose your chance to have oral argument.
In some juvenile appeals, you may have to serve and file a request for oral argument (if you want it). For example, if you are appealing the termination of your parental rights, you must request oral argument and file the request within 15 days after your reply brief is filed or is due.
The fact that you orally argue a case does not affect how long it takes to get your decision. It will not delay your case.
- Check the laws that you referred to in your brief and make sure the law has not changed. It is important to make sure that your authorities (cases or laws you cited to back up the points made in your brief) are not outdated. Cases may have been overruled or depublished (which usually decreases how helpful the case you are using as authority is to your situation). New laws may be in place. If you find out that any authority that you cited in your briefs is not valid anymore or if you discover new authorities, then notify the court and other parties in writing before the oral argument. This is especially important if you want to cite the new authorities at oral argument.
- Review the record, the arguments both sides made, and the key authorities because the court may ask you questions about anything.
- Prepare your key points in an outline to help you be clear about the points you want to make.
- Practice your argument with interruptions. You may want to use your outline and practice with others. In court, you may choose to use some of your time to respond to the other side's argument. Reread the other side's brief and try to think of what he or she will argue. Practice your response. You should also put yourself in the shoes of the appellate court and think of questions that they might ask. You can look back to your outline to make sure you cover all of your important points since you will NOT get extra time, even if the justices take up a lot of your time with questions.
- Try to come to the court and observe at least some oral argument before your argument date. Call the clerk's office to make sure you go on a day when there are oral arguments scheduled. Argument is open to the public so you do not need special permission to attend.
Remember that the judges will be familiar with your case and will have already read the briefs, so you do not need to restate the facts of the case or repeat parts of the brief. It is more helpful to just highlight what you think is most important in your case or ask the judges if they have any questions you could answer. The judges may interrupt you (and the other side) to ask questions about your case and the laws and other cases that you cited or should have cited. Remember to stay calm and respectful, even if you get frustrated or are interrupted. Whenever you are asked something you should stop what you are saying and answer as directly as possible. If you do not know the answer, then just say so. Also, remember that you cannot present new arguments orally unless you discussed them in your brief.