Oral Argument

Deciding whether to have oral argument
When you are deciding whether to participate in oral argument, remember that the judges will have already read the briefs, so it is not necessary to read your brief to the judges.  Oral argument is not a chance to read a prepared statement out loud or to talk about what is in the brief. If everything you want to argue is in the brief, then you should think about not participating in (waiving) oral argument. Oral argument is your chance to clarify the points you made in your brief, tell the appellate court what you think is most important about your arguments, and answer questions from the appellate court judges. If you want to orally argue, be prepared and flexible — the judges may interrupt you (and the other side) to ask questions about your case and the laws and other cases that you cited or should have cited.

The fact that you orally argue a case does not affect how long it takes to get your decision. It will not delay your case. If only one side waives (gives up) oral argument, the appellate court will hold oral argument with the other side. If everyone waives oral argument, the judges will consider your appeal based on the briefs and the record that were submitted.

Telling the court whether you want oral argument

Once all the briefs have been filed or the time to file them has passed, the court will send you a notice with the date for oral argument and will probably ask you if you want to have oral argument.

You can "waive" (give up) oral argument if you want.  To let the court know that you do NOT want to have oral argument:

• If the court sends you a notice asking you if you want to participate in oral argument and you do NOT respond, the court will assume you are waiving your oral argument.
• If the notice does not specifically ask you if you want oral argument, you can let the appellate court know, in writing or in person, that you want to waive oral argument.

To tell the court you DO want to participate in oral argument, let the court know that in writing or in person when the court sends you the notice with the date for oral argument. If you do NOT let the court know you want oral argument, it will assume you do not want to have it and you will lose your chance to have oral argument.

In some juvenile appeals, you may have to serve and file a request for oral argument (if you want it). For example, if you are appealing the termination of your parental rights, you must request oral argument and file the request within 15 days after your reply brief is filed or is due.

To prepare for oral argument:

1. Check the laws that you referred to in your brief and make sure the law has not changed. It is important to make sure that your authorities (published court decisions, constitutions, statutes, court rules or other legal authorities you cited in our brief to support what you say is the law) are not outdated. Cases may have been overruled or depublished (which means they cannot be cited as authority). New laws may be in place. If you find out that any authority that you cited in your briefs is not valid anymore or if you discover new authorities, then notify the court and other parties in writing before the oral argument. This is especially important if you want to cite the new authorities at oral argument.
   
2. Review the record, the arguments both sides made, and the key authorities because the court may ask you questions about anything.
   
3. Prepare your key points in an outline to help you be clear about the points you want to make.
   
4. Practice your argument with interruptions. You may want to use your outline and practice with others. In court, you may choose to use some of your time to respond to the other side's argument. Reread the other side's brief and try to think of what he or she will argue. Practice your response. You should also put yourself in the shoes of the appellate court and think of questions that they might ask. You can look back to your outline to make sure you cover all of your important points since you will NOT get extra time, even if the justices take up a lot of your time with questions.
   
5. Try to come to the court and observe at least some oral argument before your argument date. Call the clerk's office to make sure you go on a day when there are oral arguments scheduled. Argument is open to the public so you do not need special permission to attend.

Usually, people will start their oral argument before the appellate court with the words "May it please the court." If you want to save some of your time to respond to the other side, then you must tell the court this immediately. Even though the appellate court cannot give you special treatment just because you do not have a lawyer, you should still tell the judges that you are self-represented.

Remember that the judges will be familiar with your case and will have already read the briefs, so you do not need to restate the facts of the case or repeat parts of the brief. It is more helpful to just highlight what you think is most important in your case or ask the judges if they have any questions you could answer. The judges may interrupt you (and the other side) to ask questions about your case and authorities (published court decisions, constitutions, statutes, court rules or other legal authorities) that you cited or should have cited. Remember to stay calm and respectful, even if you get frustrated or are interrupted. Whenever you are asked something you should stop what you are saying and answer as directly as possible. If you do not know the answer, then just say so. Also, remember that you cannot present new arguments orally unless you discussed them in your brief.