Getting Ready For Oral Argument
JimSkuthanFederal Defender’s OfficeMiddle District of FloridaJim_Skuthan@fd.org
Some Things to Know About OA
Most Cases in the Eleventh Circuit Are DecidedWithoutOral Argument.Oral arguments are heard in Atlanta, Miami, Jacksonville and Montgomery.Learn the process of how cases are decided in the Eleventh Circuit.Review Excellent Source Materials on oral argument in general and how the Eleventh Circuit specifically handles assignment of cases and oral argument (see handout).
11th Circuit Rule 28-1(c), Statement Regarding Oral Argument in the Initial Brief.See also pages47 and 58 - 59of the Federal Defender Appellate Manual.“A short statement of whether Oral Argument is requested and if so why.”Should be requested in every initial brief unless some good reason not to. Not surprisingly, the government usually does not request oral argument when they are the Appellee.
FRAP 34. Oral Argument
Oral argument must be allowed in every case unless a panel of three judges, who have examined the briefs and record unanimously agrees that the oral argument is unnecessary for any of the reasons:(A) the appeal is frivolous;(B) the dispositive issue or issues have been authoritatively decided;(C) the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by OA
Most Cases Are Decided WithoutOral Argument
Bottomline – if you get oral argument, make the most of it. Your case may make new law for theCircuit.
Getting the Notice of OA
-- Several months before Oral Argument week, you will get a notice ofthe weekthat oral argument will be held and the location. For this notice, you willnotbe told the judges on your panel and you willnotbe given a specific date for your argument.-- Upon getting the notice, you will call the clerk and request one of the four days of the week listed in the notice.-- Should call AUSA to see if you and her can agree to request a specific date.
If you’ve never done an oral argument in the 11th COA before, suggest you don’t request the first oral argument day of the week.Why? If you have never done an OA before, may want to attend the oral arguments the day before your argument to get a feel for the panel and to familiarize yourself with the courthouse and the procedure.
Moot Court and Brainstorming
As soon as possible, contact the appellate division of the FPD Office and request to schedule a moot court with the appellate division.Do thisassoon as you get notice of OA.Rosemary_Cakmis@fd.org
Issues to Think About –Argument Time
Typically, you will only get fifteen minutes to argue your case. As the Appellant, you will be able to split your fifteen minutes between your initial argument and a rebuttal argument.Rebuttal argument is not required, but in almost every case you will want to reserve at least a few minutes of your argument for rebuttal.Why? To correct any factual errors in Appellee’s argument and to respond to Appellee’s legal argument.
How do you apportion your fifteen minutes to cover ALL of your issues.Example –Your case on appeal involves the following:A dispositive motion to suppress;A multiple count indictment;A four day trial involving several evidentiary objections;A sufficiency of evidence claim;Several sentencing issues.
Importance of moot court preparation and brainstorming issues with your moot team.Carefully craft a motion asking for additional Oral Argument time.Ask for more than you need, but be reasonable. i.e. if you ask for 30 minutes per side, they may give you five or ten additional minutes per side to argue.Government will get same total amount of time that you get.
Possible Ethical Issue – Client wants you to argue the sufficiency issue, which you believe is the weakest issue in the brief. You want to spend your time on the sentencing issue, which you believe is the reason why the Court granted oral argument.What do you do?
OA With Co-Defendants
With multi-defendant cases, the Appellants, together, only get a total of fifteen minutes to presentallof the Appellants arguments.Meet soon after oral argument is granted with co-counsel and decide :1. What issues to argue;2. Who will argue the main issues on behalf of the group (i.e. sufficiency of evidence; dispositive suppression issue, etc.)3. What individual issues will be argued (i.e. one of the three co-defendants has a career offender issue).
OA with Co-Defendants,Cont’d
Make sure you reserve at least a few minutes of rebuttal time;File an early, carefully crafted motion asking for additional oral argument time. Discuss in your motion the number of issues, the number of defendants and the complexity of your case.If applicable, discuss in your motion that the defendants have antagonistic defenses and/or separate, substantive issues.Finally, contact FPD office to schedule moot and brainstorming session.
Preparing Your Argument
From the time you file your briefs until the time you have been notified you will get oral argument, several months may have passedInthe weeks leading up to yourcourt date, developa plan for preparing your argument.Some suggestions:Know the court rules;Reread the entire Appendix carefully (Avoid the temptation of relying on your memory as to what happened in the district court);
Preparing Your Argument,Cont’d
Reread your brief carefully;Reread the Government’s brief;Reread the district court’s rulings;Reread keycases;Start preparing an outline for your argument.Don’t wait until the last minute!!
Two Weeks Before the OA
Contact the COA and find out which judges will be on your three judge panel and find out everything you can about those judges.Determine if any of the three judges were on panels that decided cases cited by you or the government in the briefs.Know those cases well and expect those judges to question you carefully about those prior decisions.The Eleventh Circuit has only twelve active judges. Thus, a good likelihood your panel will include Senior 11th Circuit judges, Circuit Judges from other Circuits and District Judges.
Reach out to attorney in those circuits and districts to find out more about the judges on your panel who arenoton the Eleventh Circuit.
Brainstorming and Moot Preparation
Brainstorming is not the same as a moot court argument.From thetime you find out you have oral argument, you should start the brainstorming process. Contact our office and contact other seasoned appellate lawyers to brainstorm and discuss your issues and the best way to present them in oral argument.Within two weeks or your oral argument, do an actual moot argument with lawyers posing as questions asking questions.
Logistics – Murphy’s Law Applies
If you’ve never argued before the 11th COA, try to attend the arguments before your panel the day before.If you can’t make it to arguments the day before, at least book a flight that gives you plenty of time to rest and prepare the day before the argument. Visit the courthouse to know its exact location.Stay in a hotel within walking distance of the COA. Book early or the Government attorneys will reserve all of the government rate rooms!
Day Before Oral Argument
Day before – Check to see if any new cases decided that apply to your case. If so, print four copies and bring to argument with you the next day. Clerk will have a form you can fill out with last minute supplemental authority.Supplemental Authority isNOTa case that was decided before your brief was filed!
Oral Argument Day
Arrive Early!!Everyone arguing has to check in at least thirty to sixty minutes before the first oral argument of the day.Example – The first case being argued begins at 9 am. Your case is scheduled for argument at 11 am.You still will be required to check in between 8:00 and 8:30 am even though your case won’t be argued until later.
OA Day – Checking In
At check in, the Clerk will give you the final timetable for the arguments. Although rare, sometimes the order of cases is switched on the day of the argument. Be ready to argue your case first even though you are scheduled last.If you are the Appellant, the clerk will ask you how much time you want to reserve for your rebuttal.Give the clerk any last minute supplemental authority that you may have discovered.
OA Day – The Argument
Be Aware of the lighting system. When the argument begins, the light will turn green. When you are two minutes from the end of your argument, the light will turn yellow. When your time is up, the light will turn red.When the light turns red, you will need to stop your argument. If in mid-sentence, you can finish your sentence.For your rebuttal argument, there will be no yellow light.A large, visible clock will count down the time.
Know thenamesof your judges and their correct titles.i.e. Chief Judge Carnes; JudgeWilson, etc.At the commencement of the argument, the Court may identify the issue(s) that it wants the parties to address.Assume that the court is familiar with the record so get right to your argument.Don’t read your argument.The rules tell you not to readyour argument.Focuson the judges and respond directly to their questions.
Acknowledge weaknesses in your argument.However, DON’T make concessions that can be interpreted as an adoptive admission on your behalf.Burglary example – Where counsel’s statement at oral argument that “the defendant kicked in the door of the house” was considered an adoptive admission that the prior conviction was a burglary to a dwelling.
Consider filing a motion to argue your casein cameraif you feel your client might be in danger by arguing his case in public. Can be used in cases where in your argument you will be discussing your client’s extensive cooperation against all of the co-defendants.
OA – Tips from Former ChiefJudgeDubina
Joel F.Dubina,How to Litigate Successfully in the United States Court of Appeals for the Eleventh Circuit. 29Cumb. L. Rev. 1 (1999).Becourteous and polite;Get right to the issues;Don’t dwell on the facts;Answer the Judges Questions directly and precisely;Learn to Overcome Fear;Educate and Teach the Court
Cite to Supreme Court and Eleventh Circuit Authority. NOTE –what aboutunpublished Eleventh Circuit decisions?Keep in mind that the brief is critical -- Thus, know what is in your brief and the Government’s brief.Know the Standards of Review;Know the Record;Don’t make a jury argument;Know when to sit down;In concluding, tell the Court what you want.
Always, Always save time for rebuttal – even in a multi defendant case.Get directly to the points you want to address;Cannot argue issue in rebuttal that you did not raise during your initial argument.Answer questions that the court raised during Appellee’s presentation.Correct any factual misstatements made by opposing counsel. Do it nicely!
After the Argument
Keep checking the case law on your issues. If a supplemental case is decided, file a supplemental authority letter.Write your client a letter (or schedule a prison call) telling him about the oral argument and answering any questions he has about the argument and/or the case.
Any Questions, contact me at:Jim_Skuthan@fd.org