At the Colorado Court of Appeals, any party can ask for the chance to present their case before the court at oral argument. But should you? While ultimately the decision whether oral argument is granted is up to the court, the initial decision of whether to ask in the first place brings up an even bigger topic. Does oral argument really ever makes a difference in the case?
While it may be rare that oral argument changes a judge’s mind 180 degrees, the chance is always there. More importantly, however, oral argument is a chance to present your case in a different context and answer any questions the panel may have. And if the chance is there to sway the judges, why pass it up? That being said, oral argument is definitely an investment. Ultimately, it may come down to a cost-benefit analysis. In deciding whether it is worth it to request oral argument, here are six questions to ask:
1. What Is Your Case About?
More importantly, what is your argument? Is your brief premised on asking the court to reverse a jury verdict for insufficient evidence, or to overturn factual findings as clearly erroneous? In those cases, reversal is already an uphill battle. If the deck is stacked against you, oral argument is unlikely to make a difference. But if on the other hand, there is a legal argument that the judges are likely to find interesting or think presents a closer call, oral argument is probably worthwhile.
2. Is There an Issue of First Impression?
Cases raising issues of first impression in the state may signal an argument-worthy cause. There is extra pressure on judges to get it right and many cases of first impression will make their way to the Colorado Supreme Court. Because it involves an issue that hasn’t been tested, it is also more likely that the case will be close. In close cases, oral argument can make even more of a difference.
3. Is the Case Important to Other People?
In every case, the issues are going to be important to the client. But importance to the client is not usually a reason for oral argument. Cases that raise issues of importance to a broader group—say a whole industry, or a certain class of citizens—are good candidates for oral argument. This is because the judges will be more concerned with the broader impact of their decision. Oral argument helps them bounce ideas off the litigants and explore the implications of their would-be opinion. Even if oral argument does not win the case, you can potentially do “damage-control” in oral argument by pointing out the downsides of a certain course of action. In these cases, oral argument serves an extremely important purpose and cannot be understated.
4. Do You Think the Judges Will Have Questions?
While oral argument may feel like the advocate’s moment to shine, it is really all about the judges. Oral argument helps the court explore the implications of the road upon which they are about to embark by getting clarity from the experts in the case. The court may have more questions in cases with interesting legal questions and issues of first impression, but they may also have them in cases with complicated factual or procedural history. They may need more guidance than the brief can provide in cases involving specialized knowledge. As generalists, they may be very familiar with one area—say criminal law—and not as familiar with a more specialized civil arena. Having a lawyer who is familiar with how the industry works and can answer questions and provide background information is very helpful.
5. Is Your Client Willing to Pay?
It is no secret that adding oral argument to an appeal increases the cost. Oral argument requires a lot of preparation! Extra review of the record and applicable case law. Moot courts and drills. If the client is not willing to invest the time to allow you to adequately prepare to be in the hot seat before the appellate bench, it is not worth it even to be there. Poor performance at oral argument because counsel was not prepared negatively colors the entire position. Only ask for oral argument if you and your client are prepared to treat it seriously.
6. Do You Have What It Takes to Deliver?
Similarly, it is important to be honest about your abilities as an appellate advocate. Many lawyers think they have what it takes to persuade appellate judges. But oral argument before the appellate court is quite a bit different than arguing a motion to the trial court or persuading a jury. On a hot bench, it involves getting your points across to the judge in random order, with constant interruption, almost purely by answering questions, and at top speed. Good lawyers recognize their strengths. If you are weak in public speaking, or cannot turn on a dime in speaking, especially about the nuances of the law, you may not be the right person for the job. If you are lacking in oral argument skills, but believe oral argument is essential, associating with experienced appellate counsel who can either perform the oral argument or help prepare you for the task can be a good strategic move. At Telios Law, we serve as co-counsel with experienced trial counsel in such a scenario to bring “bench depth” to the appellate team, and the model has worked well for the lawyers and the client.
If there is even a small chance that oral argument will sway the decision, it is difficult to pass up that opportunity. Oral argument can be a very valuable advocacy tool. A lawyer should think twice before passing it up. But it is also true that you don’t want to waste the judges’ time (or the client’s money) when it is truly not necessary. Considering these questions can help you strike the right balance.
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