During my years in the Appellate Division, attorneys would frequently ask: “Why argue the appeal?” “Haven’t the judges made up their minds in advance?” My advice has always been direct and simple: Do not waive oral argument. From a selfish perspective, appellate judges enthusiastically consider the oral argument the most exciting part of their work. Counsel should approach oral argument with no less enthusiasm and preparation.
Appellate jurists are different from the trial judges in the sense that they have not been living with the case for months or years. For this reason, the appellate bench is generally more open to the influence of good oral advocacy. Appellate judges come to the argument well-prepared having read the record, briefs and bench memoranda prepared by the law department and their law clerks and they may very well have discussed the case with other members of the panel. An appellate jurist may be leaning in your favor, against you or may yet be wholly undecided. Is the bench split? Is the bench as a whole undecided? The problem is that you don’t know the answer to those questions. Oral argument is your opportunity to help solidify the judge who is in your favor, tip the scales of the judge who is undecided, and yes, you may even move the judge who was leaning in favor of the adverse position. During my more than 11 years in the Appellate Division, there were countless times when the first words out of more than one judge’s mouth at consultation were: “Can you believe the attorneys did not come in to argue this case?” Do you want to be the lawyer who is the object of that question? I think not. Don’t waive the one last opportunity you have to influence the court of the merits of your client’s position. And, certainly, don’t squander the opportunity.
