Advice for Arguing an Appeal

Arguing an appeal is vastly different than arguing a motion or another point in front of lower court.  Indeed, appellate panels often consist of three or more judges and the dynamic of appellate oral arguments is different than it is when presenting other kinds of legal arguments.  The is some advice for arguing an appeal that litigants and parties should keep in mind when presenting oral arguments on appeal.

Read Everything

One important piece of advice for arguing an appeal is to read everything that is submitted on appeal.  There are often more documents involved with an appeal than there are for lower court motions or other applications.  The appellate record often consists of all of the materials that were submitted to the lower court, and this record must be compiled and filed with the appellate court.  Moreover, each side has the opportunity to file appellate briefs that narrow the points of argument for the appeal.  In addition, some appeals involve motion practice, and each motion involves the submission of various documents.

Litigants and parties are oftentimes surprised with questions that are asked on appeal.  It is very difficult to anticipate the questions that will be asked by appellate judges, and each judge has their own way of thinking about a case and the legal issues that are involved with a matter.  As a result, litigants and parties need to be prepared to answer questions about particular areas of an appeal so that they have the best chance possible of succeeding on the appeal.

Research the Judges

Some addition advice for arguing an appeal is to conduct background research on the judges who will sit on the appellate panel which will decide an appeal.  It is common for litigants and attorneys to research judges who will decide legal matters which will impact a given client.  This is because research could indicate which arguments might be most persuasive to a judge and determine how a judge ruled on similar issues in the past.

Individuals oftentimes know which judges will hear an appeal well in advance of oral argument.  As such, there is normally plenty of time to conduct background research on judges that will hear an appeal.  There are several online databases in which individuals can comment on past experiences with judges and litigants and their counsel can ask colleagues for information about judges as well.  Any research can help an advocate craft arguments so that they have the best chance at being persuasive to judges who are hearing an appeal.

Learn the Rules

An important piece of advice for arguing an appeal is to learn the rules of a given oral argument. Unlike arguing a motion or other matter before a trial court, appellate courts oftentimes have rigorous rules for oral argument. Parties are usually only given a certain period of time to speak, and this period differs from jurisdiction to jurisdiction.  Moreover, some jurisdictions have a set time for people to speak before being questioned by the judges while other jurisdictions are more informal and judges might cut the advocates off at any time with questions.  Moreover, some jurisdictions may allow the party filing the appeal to make rebuttal arguments at the end of the oral argument, and the time allotted for this argument is usually less than the main argument.  In addition, some jurisdictions may allow the use of demonstrative exhibits on appeal while other jurisdictions prohibit this practice.  Some jurisdictions also only allow one advocate to make arguments on behalf of a party while other jurisdictions might permit two or more advocates to make arguments for a client.  The specific rules that must be followed in a given oral argument will have a substantial impact on how arguments should be structured to have the greatest impact possible for a client.

Practice

One of the best pieces of advice for arguing an appeal is to practice your argument as many times as possible.  One of the biggest differences between oral arguments and trial-level arguments is that litigants are often questioned more often and by more judges at appellate oral arguments than at trial-level arguments.  Advocates may be caught off guard by some of the questions that are advanced at oral argument, especially if they are not used to this form of oral argument from prior experiences.

As a result, it often pays to prepare the introductory remarks that you may have so that you can recite this flawlessly at oral arguments.  However, it is perhaps more beneficial to prepare for questioning that people may expect at oral argument.  If possible, an advocate should enlist the help of several friends who can ask them questions after each other like they may be able to expect at the oral argument itself.  Additional minds can also help craft the best answers to some questions that are more likely to be asked at oral argument.  The more practice an advocate has before oral arguments, the more prepared they are likely to be at oral arguments.

The Rothman Law Firm has experience with all parts of the appeals process, including appellate oral arguments.  If you are looking for an experienced New York and New Jersey to handle your appeal or other legal issue, please feel free to contact The Rothman Law Firm to request a free consultation.