Legal Practice Tip: Oral Argument - Articles

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Posted by: George Lewis on Apr 10, 2018
All practitioners are aware that oral argument is governed by Rule 35 of the Tennessee Rules of Appellate Procedure. Entire books and day-long seminars have been devoted to oral argument, so the purpose of this tip is to convey a few pieces of information regarding oral argument of which practitioners may not be aware.
The first point is to recognize that the time for oral argument set aside in the Sixth Circuit Court of Appeals and in the Tennessee Appellate Courts is different. In the Sixth Circuit, parties only get 15 minutes per side absent an order to the contrary. In the Tennessee appellate courts, the parties get 30 minutes absent an order to the contrary. This is a profound difference and has implications for the structure of the oral argument. Obviously, 15 minutes is a very short period of time and in the Sixth Circuit, counsel typically will have to rely on their briefs for one or more issues and focus the entirety of their oral argument on one or two principal arguments. It is actually wise in the Tennessee Appellate Courts as well to consider whether every single issue in the brief needs to be addressed during oral argument.
Some sections tend to ask more questions than others just as some judges tend to ask more questions than others, but it is important, especially for the appellant, that the court get a full understanding of the principal argument being presented. During the argument, there may be present on the podium a panel of lights that change from green to yellow to red. The green light indicates that there is substantial time remaining. The yellow light indicates that the time allotted for the argument is about to draw to a close. The red light indicates that counsel should stop absent leave of the court.
The preferred practice when time runs out is that if counsel is answering a question, counsel should request leave from the presiding judge to finish their answer. If counsel has not been asked a question and has run out of time, counsel should offer to answer any questions the court may have, acknowledging that they have run out of time. Rule 35 (d) allows the appellant some rebuttal time. At the beginning of the argument, most courts prefer to have the appellant state how much rebuttal time they are reserving. This allows the clerk to properly keep the time during the principal argument.
Although (d) prohibits reading at length from the record, briefs or authorities, most courts will allow parties to have placed at each judge’s position on the dais one or two key exhibits for reference during oral argument. Most courts will also allow counsel to refer to charts that may be placed on a tripod in the courtroom. Counsel should work with and through the clerk of the appellate court with respect to either technique. Although generally not employed, having a key exhibit on the dais or having a key exhibit (or timeline or photograph) available on a chart in the courtroom can be a very effective tool.
When there is more than one party on a side, most courts prefer that the parties designate one advocate to argue the case. Courts do not like redundant arguments and would prefer to be able to address one advocate with respect to all the issues. Nevertheless, if there are parties on the same side with diverse interests, the time for the oral argument can be divided. Counsel should also be mindful, though, that (f) provides that no more than two counsel or parties will be heard from each side requesting the same relief. Counsel should be mindful that oral argument must be requested by at least one party and that if no party requests oral argument expressly at the bottom of the cover page of the party’s brief, the court will submit the case for decision on the record and the briefs. The Court, of course, retains the discretion to direct that the case be argued even if no party has requested it.
Clients also inquire as to which appellate judges will hear their case. That is a difficult question to answer because appellate judges from throughout the state may sometimes sit in divisions other than the divisions to which they are regularly assigned. In addition, counsel will generally not be aware until oral argument actually commences which judges will actually sit on their case. For example, there are instances of where even the Supreme Court has taken a recess and when the court reappeared after the recess a special judge was designated because one of the regular justices had recused themselves. Counsel, therefore, can make educated guesses about the judges who will probably hear the case, however, these predictions should also be accompanied by a caveat that it is within the court’s discretion to change who hears the case at the last minute. (Section 3 of Supreme Court Rule 10(d) governs the disqualification and recusal of appellate judges.)

George "Buck" Lewis is a shareholder at Baker Donelson, former TBA president and currently chairs the Appellate Practice Law Section.