Wednesday, March 31, 2010

Arguing Another Attorney's Appeal

Last August I discussed an appeal in the United States Court of Appeals for the Second Circuit which I orally argued for the appellees although I did not write the brief and I did not know anything about the case until appellees' counsel asked me to argue.

In response to some comments I explained that some lawyers are uncomfortable at oral argument so they prefer that someone else appear. In other instances the lawyer who appeared at the trial writes the appellate brief, and something he did (or did not do) at trial becomes an important matter on appeal. It may, therefore, be awkward for the lawyer to appear at oral argument and defend his own action (or inaction). He may also be concerned that his oral argument will smack too much of self-justification, and detract from the client's case. He, therefore, has another lawyer argue the case.

Earlier this month it happened again: a law firm which successfully represented a plaintiff in defeating a motion for summary judgment and then drafted the respondent's appellate brief, asked me to argue the case before the Appellate Division, First Department. It is an important case for the firm, and it opted for someone with considerable appellate experience.

I see a growing awareness that oral argument of an appeal is important. It 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 a 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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