This post is authored by Cathy Trent-Vilim, a partner in LDM’s litigation department. This is Part II of her two part post.
Welcome to Part II. If you’ve found your way to Part II, chances are you’ve received notice from the Court of Appeals, at one time or another, notifying you that the Court has elected to forego oral argument in your case. As you learned in Part I, the Supreme Court has now provided parties with a procedural mechanism for requesting oral argument after notice canceling oral argument has been sent.
The question, then, is whether you should choose to take advantage of this procedural tool and request oral argument. Certainly, the answer is ‘it depends on the facts of your case.’ However, when deciding whether to seek oral argument, consider the following:
- Was your case was procedurally complex? If so, oral argument may help clarify for the Court the procedural background in ways your brief does not, especially if you were constrained in your review of the procedural complexity because of page limitations.
- Was the case was factually complex or convoluted? Like procedural complexity, a factually complex case may be difficult to fully explain in a written brief and oral argument will give the Court an opportunity to ask clarifying questions.
- Has there been a change in the relevant law subsequent to the parties’ briefing of the case? If so, oral argument will give you an opportunity to point out the change in law and how it impacts your case.
- Are there issues related to the standard of review applicable to your case (i.e., the standard of review has not yet been decided, or the case law is inconsistent)? If so, oral argument will give the parties and Court an opportunity to discuss what the proper standard should be.
- Can oral argument assist the Court in determining the scope of the question presented? For example, if the Court is deciding a question of first impression, oral argument may help the Court in tailoring its opinion to the issue in your case, thereby avoiding a broad or sweeping ruling which could have unintended consequences.
- Could the Court’s ruling adversely impact an entire business sector or industry? If so, those issues may not have been fleshed out in the parties’ briefing, but are factors for the Court to consider in its ruling.
- Are there important policy considerations the Court should consider when reaching its decision? As with industry consideration, you may not have the ability to fully address these issues in your brief. Nevertheless, they are important considerations for the Court.
If one or more of these conditions exist, the Court may very well see the benefit of oral argument. Do not assume that because the Court has elected to submit your case without oral argument, it has already rejected these considerations. File your motion and put your best foot forward.
Finally, if you succeed in your motion, come prepared. As the saying goes, you almost never win an appeal on oral argument; but you most certainly can lose the appeal during oral argument.