What to Expect in Ninth Circuit Oral Arguments

 

Last week I spent two days in the Ninth Circuit Court of Appeals where I observed a total of 7 oral arguments.  It was interesting to see each counsel’s style and preparation level and the Justices reactions to their arguments.  Here are some of my observations.

Substantive Observations

  1. Direct Questions – The panel was a particularly hot bench and wasted no time getting into the heart of the argument.  Justice Garber started asking questions immediately following the introduction.  She bypassed the facts and asked questions about the weakest part of the speaker’s argument first.
  2. Standard of Review –The court took particular interest in the standards of review and repeatedly asked counsel what remedy s/he proposed.  The court was interested in why it should decide instead of remanding it for trial.

Procedural Observations.  The clock on the podium represents the total time including rebuttal time.  Only one advocate asked for rebuttal time, but the panel gave a 1 ½ minute warning anyway.  The panel allowed one advocate a minute for rebuttal, even though he was out of time, because it asked a lot of questions.

Common Mistakes:

  1. Fumbling through the record – TAB the record, so you know where you are quoting from and can find a certain page when the court asks.
  2. Not clearly communicating the issue – During one argument the court was confused about the issue and when it asked for clarity counsel did not seem to be able to provide it.  It seemed as though he was just repeating the facts and trying to retry the case.
  3. Restating whole argument to answer a question – During one argument, Justice Murguia asked the same question three times.  She prefaced it the third time with “you still haven’t answered the question.”  Answer yes or no.  Then make your reasoning concise.
  4. Incomplete Record – Thankfully this was not common, but in a criminal case,  where the issue was whether the defendant was properly advised about how his guilty plea would affect his immigration status, neither party submitted the sentencing transcript as part of the record.

Best Advocate

The best advocate I saw over the two days did two things very well.

  1. Delivery – he made his arguments with ease and kept his tone conversational the entire time.  He did not concede any of his points and answered every question clearly, starting each answer with a direct “yes, your honor” or “no, your honor.”
  2. Framing the Issue – he was able to frame the issue in the light most favorable to his argument and use the facts to support his position.  This made the opponent’s argument weak and the opponent did not challenged the issue on rebuttal.

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