Tuesday, August 11, 2009

Arguing Another Attorney's Appeal

Last week I discussed a case in the United States Court of Appeals for the Second Circuit in which I appeared at oral argument for the appellees although I did not write their brief and did not know anything about the case until I was asked to appear for the argument.

Attorney David M. Gottlieb sent a thoughtful comment in which he wonders whether there is a trend towards attorneys appearing only for the oral argument, and he asks why do attorneys who write the brief request that another attorney orally argue the case.

I do not know whether the appearance of attorneys only for oral argument occurs more often today than five or ten years ago. I intend to conduct an informal survey.

As for why lawyers ask other lawyers to argue the case: several years ago an attorney told me that while he loved to do research and to write appellate briefs, he became too nervous at oral argument so he asked other lawyers to argue his cases. This probably applies to other attorneys as well.

It also happens that the lawyer who appeared at the trial also writes the appellate brief, and something he did (or did not do) at the trial becomes an important matter on appeal. It may be awkward for the lawyer to appear at oral argument and defend his own action (or inaction). He may be concerned that his argument will smack too much of self-justification, and detract from the client's cause. He, therefore, has another attorney argue the case.

But whatever the reason, what emerges is the importance attorneys attach to oral argument. I disagree with lawyers who forego legal argument. Oral argument is the only time in the appellate process when an attorney can answer the questions which are on a judge's mind. After reading the briefs and pertinent parts of the record, appellate judges obviously go on the bench inclined to decide the case a particular way. Different appellate judges have told me that oral argument changes their mind from 5% to 15% of the time. That is not an opportunity any attorney should pass up.

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