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Preparing for Oral Argument

What is oral argument?

After both sides file the briefs, either party can request to have an oral argument before the Supreme Court. This is when both parties appear in the Supreme Court and each side argues their case and the justices may ask questions. Oral argument gives you the opportunity to explain the legal reasons that support why you should win the appeal. While it can be intimidating to argue before the Supreme Court, the justices do not want parties to feel afraid of presenting oral argument.

How do you request oral argument?

Either party may serve and file a written Request for Oral Argument, SHS- AP 300 within 10 days after the date the appellant's reply brief is due. If either party asks for oral argument, it will be automatically scheduled. The Appellate Clerk's Office will send a notice of the date and location of the oral argument.

Where will the oral argument happen?

The oral argument will happen either in Anchorage, Fairbanks or Juneau, depending on where Superior Court case was heard.

Is oral argument required?

You are not required to present oral argument. The court will schedule argument only if at least one party requests it. Oral argument can be helpful to the Supreme Court because it lets the justices ask questions about areas that might be important. It also lets them explore implications of the legal issues that the parties might not have considered.

If oral argument is scheduled, you can waive your argument or limit it to particular issues if you want. If you are the appellant and either waive your opening argument or limit the issues discussed, be aware that you will be limited in how you respond to the appellee's arguments. If you want to present a rebuttal argument after the appellee argues, you will be limited to topics discussed by the appellee and cannot address other issues.

If there is no oral argument, does that affect how the Supreme Court decides the case?

If neither party requests oral argument, the Court will decide the appeal based on the briefs filed. The Supreme Court's opinion will happen in the same timeline as if you had an oral argument.

Does the court read the briefs before oral argument?

Yes. The justices read the briefs, the excerpts of record and a memo written by a law clerk that thoroughly summarizes the arguments, the facts, and important legal propositions. The justices will have already given substantial thought to your case before oral argument.

What should you wear and how should you act in the Supreme Court?

Dress neatly and conservatively. Think of wearing something that you might wear to a religious service or a job interview.

Parties and their attorneys should be quiet during the other side's argument and act with courtesy in the courtroom. Make sure you turn off your cell phone. Do not excessively whisper to others during the argument. You are only allowed to speak when it is your turn during the oral argument. Never interrupt the justices or talk when the opposing party or their attorney is speaking.

Who goes first in oral argument?

Normally the appellant argues first. The appellee argues next. The appellant may close with a rebuttal argument if they have any argument time left over.

How much time is allowed for oral argument?

Usually each side has 15 minutes to argue their appeal. Before the justices enter the courtroom, the clerk will ask the appellant how she wishes to split the between the opening argument and the rebuttal.

If the appellant has 15 minutes, the opening may be 10 minutes and the rebuttal 5 minutes. When the argument begins, the clerk triggers a clock that counts down the time. If the appellant tells the clerk that the opening argument should be for 10 minutes, when the clock reaches 0 that means 10 minutes have been used. That leaves 5 minutes for rebuttal. If the opening argument lasts longer then 10 minutes, the clock will begin to read minus numbers and there will be less time for rebuttal. Usually the court will not grant additional time for rebuttal. Only time left over from the opening argument can be used for rebuttal.

When the clock shows you are out of time, quickly conclude the argument by finishing your sentence.

How do you start your opening argument?

The chief justice will tell the parties when to begin their arguments. It is common to start an oral argument with "May it please the court, my name is _________." You do not need to address the chief justice and each justice by title or name.

How do you structure your argument?

Remember that it is your job to convince the Supreme Court that the Superior Court judge made a legal mistake. Briefly discuss the legal issues that you will talk about and then discuss each significant issue in more detail. Focus on the issues you think are most important. Explain simply the factual and legal grounds for the outcome you want - this is usually that the court reverses the decision below. Do not try to phrase your arguments in legal jargon. Instead, use plain language to explain your arguments.

Remember that the Supreme Court decides only legal issues and not factual disputes.

How should you refer to the other side at oral argument?

You can use the actual names of the parties, unless it is a confidential proceeding like a Child In Need of Aid (CINA) case. You can also use a descriptive term such as "the employee" or the "injured person." You should minimize calling the parties "appellant" or "appellee." You can use the same designation that was used in the Superior Court or administrative agency proceeding.

Will the justices ask you questions?

The justices often ask the parties questions about areas they think are important. Usually the questions are about the facts of the case or some point of law. You should promptly answer the question the best you can. Be aware that a question does not necessarily reflect how the entire court views the case or even that issue. But it gives you a chance to respond to an individual justice's possible concerns. No extra time is added to a party's argument time for the time spent on questions. Remember to never interrupt a justice who is asking you a question.

What does the appellee do at oral argument?

Remember that it is the appellant's job to convince the Supreme Court that the Superior Court judge made a mistake. It is the appellee's job to convince the Supreme Court that the Superior Court's decision was correct so that the court upholds that decision.

Before the argument, write notes or an outline of why you think that the Superior Court decision was correct.

During the argument, listen carefully to what the appellant says in her opening argument. Write down notes about any issues you want to address when it is your turn to argue. Clearly and concisely tell the court why you think the appellant is wrong and the Superior Court decision below is correct.

The appellee does not get time for a rebuttal argument so make sure you say everything you think is important during your allotted time.

How should you prepare for oral argument?

The time allowed for argument is short so preparation helps use the limited time effectively. You should be able to talk about the significant facts and controlling legal doctrines and be very familiar with the record from the Superior Court. Have notes handy or make an outline to orient yourself to the issues you want to discuss. Reading a written speech is not the most effective way to argue for experienced attorneys. But for people without attorneys, reading a prepared speech may be helpful. Practice before the argument in front of someone else or with a tape recorder. Time yourself to make sure you stay within the time limit.

Watch an oral argument in the Supreme Court in advance of your argument. These arguments are open to the public and the schedule is available at the court or on the court system's website.

Alaska Supreme Court oral arguments are broadcast on Gavel to Gavel Alaska on cable systems throughout the state. Contact your local cable provider for channel information. For an exact broadcast schedule, visit the Gavel to Gavel website or contact them at 1-800-870-5866. Gavel to Gavel Alaska also keeps audio recordings of many cases before the Supreme Court.

Can you use exhibits or bring evidence?

Exhibits are used very rarely. Only exhibits or evidence that was introduced in the Superior Court case below can be considered in your appeal. If you want to use an exhibit during your oral argument to clarify or explain an issue, make sure it is easy to read from far away. The justices may be as far as 40 feet away from the display so the type size should be large - at least 72 point. Unless properly used, displays may be distracting so think carefully about whether the exhibit is necessary to your argument.

What happens after the briefs are filed and oral argument is over?

When oral argument is done, the justices usually meet right after leaving the courtroom to discuss the important issues. They reach a tentative decision about how the case should be decided. Before the argument, the case was assigned to a justice. If that justice's position is in the majority, that justice will be assigned to draft the opinion. If that justice's position is not in the majority, the case will be reassigned to another justice. The assigned justice will circulate a draft to the other justices who will vote on the draft.


Rev. 5 March 2014
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