What’s an Oral Argument?

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An oral argument is given by advocates to a judge, a panel of judges, or all judges who belong to a court, depending on the appellate court where the case will be heard and the nature of the case. This argument complements the written argument presented to the court via a brief and affects the outcome of the case. An oral argument is usually not a speech, but rather a back-and-forth dialogue between one or more judges and the “arguing” attorney. Judges will ask questions and may challenge lawyers on the points they present, often for the purpose of clarifying the law and its application, but sometimes to express an opinion indirectly.

In cases presented in the country’s highest court, all judges are usually present for oral argument. In an intermediate appellate court system, a panel or single judge is often all that is required to be present for oral argument. Judges often interrupt attorneys during oral arguments because there is limited time to clear up misconceptions and elaborate on some of the more subtle points that may have been omitted or downplayed in written briefs submitted to the court. It is often possible to discern what a judge is thinking and how he or she may decide a case based on the questions asked. An experienced attorney will often pay more attention to questions being asked rather than self-prepared notes, and will usually try to respond persuasively.

The lawyer representing the plaintiff, the one who asks the court to overturn the judgment of a lower court, is the first to argue the case. He often has the option of using all of the time to discuss the case and answer the judges’ questions, or set aside some of the time for a rebuttal. The attorney representing the defendant, the person who won in court, argues next and often doesn’t have the opportunity to set aside time for a rebuttal. If the first lawyer has time for the rebuttal, he will conclude the oral argument with his rebuttal. Judges can and often do ask questions during the rebuttal.

The preparation for the oral discussion consists in the examination by the lawyer of the brief presented and in the anticipation of the judges’ questions. It is not enough to anticipate the questions, but the lawyer must have the answers ready to satisfy the judges and conquer them. During oral discussions, the lawyer often has to answer the question directly with a “yes” or “no” initially and then state his answers using the jurisprudence and the application. An effective attorney will know when to stop arguing and leave the judge to think about the arguments he has presented.

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