THE ORAL ARGUMENT: AN ABSOLUTE MUST WHEN APPEALING A CASE

By: Honorable E. Michael Kavanagh (Ret.)

New York Law Journal Court of Appeals & Appellate Practice Special Report
August, 2017

I had the privilege of serving as an Associate Justice on the Appellate Division of New York State Supreme Court for nearly seven years, The first two years, I served in the First Department in Manhattan, and then for 5 years in the Third Department in Albany. I sat on appellate panels in both venues that heard oral arguments on appeals. From that experience, I witnessed firsthand the impact (both good and bad) oral argument can have on the outcome of an appeal. What follows are some suggestions that I believe will help the practitioner present a stronger appeal if they elect or are required to make an oral argument.

First – and undoubtedly my colleagues who now serve in appellate courts are not going to be happy about this – always, and I mean always, ask for oral argument if it is permitted on an appeal. It represents the only opportunity practitioners will have to discuss with the court the issues that have been raised by the appeal before the appeal is actually decided. If done well, it has been my experience that, an effective oral argument can serve to put your client's position in a more favorable light than what is reflected in the briefs. And, at the same time, address any questions members of the court may have about your position.

Before oral argument even takes place, appellate judges have already done a great deal of work on the appeal and are well aware of the issues. Each judge has not only seen and read the briefs submitted by the parties, but also has had access to a report prepared by the court staff containing a description of the factual and legal background of the appeal, the legal issues raised by it and the applicable law that must be considered in deciding it. So when it comes time for oral argument, the members of the panel are well prepared, and the questions they pose during oral argument often reflect the concerns that they – and other members of the court – have regarding the issues that must be resolved before rendering a decision. These are the very same concerns that may be discussed by the panel at conferences when each judge will indicate how they believe the appeal should ultimately be decided. As a result, how counsel responds to questions posed by the court during oral argument can make a difference, and can determine how a particular judge will ultimately vote on the appeal

In that vein, practitioners should be aware that some appellate courts televise, in real time, oral arguments back to chambers so that law clerks can follow the presentation. It is not uncommon for these law clerks to adopt arguments made by counsel during their oral presentation in preparing their final report to the judge on the decision to be rendered on the appeal. (In fact, the Third Department has a live video feed of oral argument which is transmitted to chambers and allows the law clerks to follow the proceedings as they occur. These transmissions are recorded and saved for possible reference while the final decision is being prepared and later published.)

An effective advocate does not waste time allotted for oral argument by simply rehashing the underlying facts or repeating verbatim what has already been set forth in their brief. Instead they use their oral argument to succinctly identify the issues raised by the appeal, highlighting the strengths of their position and why the court should reject their adversary's argument(s). In that regard, advocates should be aware that most appellate courts place limits on the time allotted for oral argument and some rigorously enforce those time restraints more than others. Since you will not have enough time to cover every point made in your brief, pick out one or two that are crucial to your position and hit those issues hard.

There is also an excellent chance that early on in your presentation you will be interrupted by a member of the court with a question. Listen to it – and, most importantly, answer it. Trust me, there is nothing more unsettling and annoying to an appellate judge than an advocate not responding to questions put forth by members of the panel. If you've done a good job preparing for oral argument, you should be able to anticipate the subject matter of the questions that will be asked. Be ready to answer each and everyone!

It may sound elemental, but proper preparation for oral argument requires that you be ready to address not only the strengths of your appeal, but the weaknesses in your position as well. Some attorneys hope that such issues will simply disappear and not come up during oral argument. Well, they don't, and you can't afford to assume that they won't be brought up during your oral argument. Obviously your adversary, if moderately competent, will raise these issues and it may well be that one or more members of the panel may have questions about them. An effective advocate will welcome such questions. If asked by the court, they are obviously important and need to be effectively addressed if you are to have any chance of prevailing on the appeal. Moreover, it's the only opportunity you'll have to speak to the panel about their concerns. Given that opportunity, you should strive to address them in a way that's helpful to your position.

If you are the appellant, always ask for rebuttal time. It will not only give you the last word, but it will afford you an opportunity to address issues raised by your adversary, and to speak to the concerns raised by the panel. Under no circumstances should you use rebuttal to simply rehash what you have already argued in your initial presentation – that's a waste of time, and believe me, appellate judges don't appreciate advocates who waste their time.

Finally, be prepared to cite to the record. Appellate courts are bound by the record submitted on the appeal – and it is not uncommon for judges to ask counsel for a record citation supporting a position they've taken. If there is a particular part of the record that supports your position on a specific issue – especially one that is at odds with something set forth in your adversary's brief – be prepared to cite to the page in the record during oral argument. If by chance you can't find it, always request permission to submit it in writing to the clerk on notice to your adversary, identifying the record cite in question after oral argument.

The oral argument can be the essence of effective advocacy and it can make a difference in an appeal. Does that happen often? Honestly no, but it does happen and for that reason alone, practitioners should always take advantage of it.

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Hon. E. Michael Kavanagh is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and is available to hear cases throughout New York State. Hon. Kavanagh was voted as one of the Top Ten Arbitrators in New York State by the 2017 New York Law Journal Annual Reader Rankings Survey for the fifth consecutive year.

Click her to view Hon. E. Michael Kavanagh's resume

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.

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Reprinted with permission from the August 21, 2017 issue of The New York Law Journal © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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