This is the third in our four-part recap of the Hawaii State Bar Association’s 2016Annual Bar Convention.
Today, we summarize what the HSBA Appellate Section’s panel of appellate judges had to say about oral argument. The panel was comprised of Hawaii Supreme Court Chief Justice Mark Recktenwald, Intermediate Court of Appeals Chief Judge Craig Nakamura, and Ninth Circuit Judge Richard Clifton.
Oral argument practice tips and information on the procedure for oral argument included:
- The HAWSCT holds oral argument because it will help the court make a decision – i.e. it will be beneficial for the justices to ask the parties questions;
- A recommendation for oral argument will be made by the first justice who reviews the certiorari application;
- 3 HAWSCT justices must agree to schedule a case for oral argument;
- If oral argument is not scheduled, parties may request that the case be set for oral argument if they think it is important;
- Oral argument may not be held in cases where the law is straight forward, the case is not factually complex, or if there is another pending case that will also resolve the outcome in your case;
- At the ICA if any one judge things a case should be set for oral argument, it will be;
- The ICA gives significant weight to a party’s request that a case be set for oral argument;
- Oral argument is helpful if the court is undecided or needs clarification in order to make a decision;
- In the Ninth Circuit, most cases in which the parties are represented by counsel are set for oral argument – but 20-25% of cases set on the oral argument calendar will instead be submitted on briefs, and parties can also ask for a case that is set for oral argument to be submitted on briefs instead;
- Make the best use of your time at oral argument – the judges have already read the briefs;
- Have something prepared for your time related to your strong points, but remember that oral argument is the time for the judges to ask questions;
- Expect weak points to come up at oral argument, and have a response ready;
- Be prepared for questions you may get – including ones related to issues that may be the weakest for your case and use your answer as the time to tell why your client should still prevail;
- The best oral advocates have the ability to grab the key aspect of the case and explain why it is important and why their client should prevail;
- Good oral advocates also listen to what’s going on (even when the other side is addressing the court) and address questions that are being asked and use their time to offer their perspective;
- Think about your case before you show up at oral argument and how to best present the argument in the concise period of time;
- Listen to the questions being asked – they reveal what the court is interested in;
- Always answer the questions.
Mahalo again to the HSBA Appellate Section, and the appellate panel for their advice!