Information about Oral Arguments

What is an "oral argument" anyway?

Oral argument is not really an "argument." Rather it is more like a high-powered conversation between the justices and the attorneys. The attorneys have an opportunity to add to the arguments contained in their briefs (written arguments submitted to the court before oral argument). Oral argument also lets the attorneys clear up misconceptions or questions raised by their briefs.

Because the petitioner or appellant is the party bringing the action to the appellate court, he or she argues first. The petitioner can also reserve some time for rebuttal of the respondent's argument. The respondent or appellee argues second and has no opportunity for rebuttal. In effective rebuttal, the petitioner answers points raised by the respondent's argument and addresses any points that seemed to concern the justices during the respondent's argument. Thus, an effective oral argument also involves effective listening.

The attorney will be interrupted by questions by the justices. This is normal procedure in appeals courts throughout the nation. In an effective oral argument, the attorney will listen carefully to the questions and answer them as completely as possible. A justice will rarely raise an issue unless it is important to him or her. Thus, an attorney should not evade a question. In addition, the attorney has an ethical duty to be honest and forthright with the court. He or she cannot misrepresent facts or law to the court.

If the justices ask lots of questions, it is referred to as a "hot panel." The attorney should listen carefully to the questions to decide whether the court is leaning in his or her favor. Sometimes a justice will ask a "friendly" question that will permit the attorney to make a key point. In contrast, a justice may ask a pointed question that may suggest to some that he or she is persuaded by the other side's argument. However, it often is difficult to determine a justice's viewpoint from the questions asked. Sometimes questions are asked to test the validity of a party's position.