Preparing for Oral Argument in the Eleventh Circuit: Essential Tips
Getting Ready For Oral Argument
Jim Skuthan
Federal Defender’s Office
Middle District of Florida
Jim_Skuthan@fd.org
Some Things to Know About OA
•
Most Cases in the Eleventh Circuit Are
Decided
Without
Oral Argument.
•
Oral arguments are heard in Atlanta, Miami,
Jacksonville and Montgomery.
•
Learn the process of how cases are decided in
the Eleventh Circuit.
•
Review Excellent Source Materials on oral
argument in general and how the Eleventh
Circuit specifically handles assignment of
cases and oral argument (see handout).
Getting Started
•
11th Circuit Rule 28-1(c), Statement Regarding
Oral Argument in the Initial Brief.
See also
pages 47 and 58 - 59 of the Federal Defender
Appellate Manual.
•
“A short statement of whether Oral Argument
is requested and if so why.”
•
Should be requested in every initial brief
unless some good reason not to. Not
surprisingly, the government usually does not
request oral argument when they are the
Appellee.
FRAP 34. Oral Argument
•
Oral argument must be allowed in every case
unless a panel of three judges, who have
examined the briefs and record unanimously
agrees that the oral argument is unnecessary
for any of the reasons:
•
(A) the appeal is frivolous;
•
(B) the dispositive issue or issues have been
authoritatively decided;
•
(C) the facts and legal arguments are
adequately presented in the briefs and record
and the decisional process would not be
significantly aided by OA
Most Cases Are Decided Without
Oral Argument
•
Bottom line – if you get oral argument, make
the most of it. Your case may make new law
for the Circuit.
Getting the Notice of OA
-- Several months before Oral Argument week,
you will get a notice of
the week
that oral
argument will be held and the location. For this
notice, you will
not
be told the judges on your
panel and you will
not
be given a specific date
for your argument.
-- Upon getting the notice, you will call the clerk
and request one of the four days of the week
listed in the notice.
-- Should call AUSA to see if you and her can
agree to request a specific date.
•
If you’ve never done an oral argument in the
11th COA before, suggest you don’t request
the first oral argument day of the week.
•
Why? If you have never done an OA before,
may want to attend the oral arguments the
day before your argument to get a feel for the
panel and to familiarize yourself with the
courthouse and the procedure.
Moot Court and Brainstorming
•
As soon as possible, contact the
appellate division of the FPD Office
and request to schedule a moot
court with the appellate division.
•
Do this
as
soon as you get notice of
OA.
•
Rosemary_Cakmis@fd.org
Issues to Think About –Argument Time
•
Typically, you will only get fifteen minutes to
argue your case. As the Appellant, you will be
able to split your fifteen minutes between
your initial argument and a rebuttal argument.
•
Rebuttal argument is not required, but in
almost every case you will want to reserve at
least a few minutes of your argument for
rebuttal.
•
Why? To correct any factual errors in
Appellee’s argument and to respond to
Appellee’s legal argument.
Argument Time,
Continued
•
How do you apportion your fifteen minutes to
cover ALL of your issues.
•
Example –
Your case on appeal involves the following:
1.
A dispositive motion to suppress;
2.
A multiple count indictment;
3.
A four day trial involving several evidentiary
objections;
4.
A sufficiency of evidence claim;
5.
Several sentencing issues.
Argument Time,
Continued
•
Importance of moot court preparation and
brainstorming issues with your moot team.
•
Carefully craft a motion asking for additional
Oral Argument time.
•
Ask for more than you need, but be
reasonable. i.e. if you ask for 30 minutes per
side, they may give you five or ten additional
minutes per side to argue.
•
Government will get same total amount of
time that you get.
Argument Time,
Continued
•
Possible Ethical Issue – Client wants you to
argue the sufficiency issue, which you believe
is the weakest issue in the brief. You want to
spend your time on the sentencing issue,
which you believe is the reason why the Court
granted oral argument.
•
What do you do?
OA With Co-Defendants
•
With multi-defendant cases, the Appellants,
together, only get a total of fifteen minutes to
present
all
of the Appellants arguments.
•
Meet soon after oral argument is granted with
co-counsel and decide :
–
1. What issues to argue;
–
2. Who will argue the main issues on behalf of the
group (i.e. sufficiency of evidence; dispositive
suppression issue, etc.)
–
3. What individual issues will be argued (i.e. one
of the three co-defendants has a career offender
issue).
OA with Co-Defendants,
Cont’d
4.
Make sure you reserve at least a few minutes of
rebuttal time;
5.
File an early, carefully crafted motion asking for
additional oral argument time. Discuss in your
motion the number of issues, the number of
defendants and the complexity of your case.
6.
If applicable, discuss in your motion that the
defendants have antagonistic defenses and/or
separate, substantive issues.
7.
Finally, contact FPD office to schedule moot and
brainstorming session.
Preparing Your Argument
•
From the time you file your briefs until the
time you have been notified you will get oral
argument, several months may have passed
•
In the weeks leading up to your court date,
develop a plan for preparing your argument.
Some suggestions:
–
Know the court rules;
–
Reread the entire Appendix carefully (Avoid
the temptation of relying on your memory
as to what happened in the district court);
Preparing Your Argument,
Cont’d
–
Reread your brief carefully;
–
Reread the Government’s brief;
–
Reread the district court’s rulings;
–
Reread key cases
;
–
Start preparing an outline for your
argument.
–
Don’t wait until the last minute!!
Two Weeks Before the OA
•
Contact the COA and find out which judges
will be on your three judge panel and find out
everything you can about those judges.
•
Determine if any of the three judges were on
panels that decided cases cited by you or the
government in the briefs. Know those cases
well and expect those judges to question you
carefully about those prior decisions.
•
The Eleventh Circuit has only twelve active
judges. Thus, a good likelihood your panel will
include Senior 11th Circuit judges, Circuit
Judges from other Circuits and District Judges.
•
Reach out to attorney in those circuits and
districts to find out more about the judges on
your panel who are
not
on the Eleventh
Circuit.
Brainstorming and Moot Preparation
•
Brainstorming is not the same as a moot court
argument.
•
From the time you find out you have oral
argument, you should start the brainstorming
process. Contact our office and contact other
seasoned appellate lawyers to brainstorm and
discuss your issues and the best way to
present them in oral argument.
•
Within two weeks or your oral argument, do
an actual moot argument with lawyers posing
as questions asking questions.
Logistics – Murphy’s Law Applies
•
If you’ve never argued before the 11th COA,
try to attend the arguments before your panel
the day before.
•
If you can’t make it to arguments the day
before, at least book a flight that gives you
plenty of time to rest and prepare the day
before the argument. Visit the courthouse to
know its exact location.
•
Stay in a hotel within walking distance of the
COA. Book early or the Government attorneys
will reserve all of the government rate rooms!
Day Before Oral Argument
•
Day before – Check to see if any new cases
decided that apply to your case. If so, print
four copies and bring to argument with you
the next day. Clerk will have a form you can
fill out with last minute supplemental
authority.
•
Supplemental Authority is
NOT
a case that
was decided before your brief was filed!
Oral Argument Day
Arrive Early!!
Everyone arguing has to check in at least
thirty to sixty minutes before the first oral
argument of the day.
Example – The first case being argued
begins at 9 am. Your case is scheduled for
argument at 11 am.
You still will be required to check in
between 8:00 and 8:30 am even though your
case won’t be argued until later.
OA Day – Checking In
•
At check in, the Clerk will give you the final
timetable for the arguments. Although rare,
sometimes the order of cases is switched on
the day of the argument. Be ready to argue
your case first even though you are scheduled
last.
•
If you are the Appellant, the clerk will ask you
how much time you want to reserve for your
rebuttal.
•
Give the clerk any last minute supplemental
authority that you may have discovered.
OA Day – The Argument
•
Be Aware of the lighting system. When the
argument begins, the light will turn green.
When you are two minutes from the end of
your argument, the light will turn yellow.
When your time is up, the light will turn red.
•
When the light turns red, you will need to stop
your argument. If in mid-sentence, you can
finish your sentence.
•
For your rebuttal argument, there will be no
yellow light.
•
A large, visible clock will count down the time.
The Argument,
Cont’d
•
Know the names of your judges and their
correct titles.
i.e. Chief Judge Carnes; Judge
Wilson, etc.
•
At the commencement of the argument, the
Court may identify the issue(s) that it wants
the parties to address.
•
Assume that the court is familiar with the
record so get right to your argument.
•
Don’t read your argument. The rules tell you
not to read your argument. Focus on the
judges and respond directly to their questions.
The Argument,
Cont’d
•
Acknowledge weaknesses in your argument.
•
However, DON’T make concessions that can
be interpreted as an adoptive admission on
your behalf.
•
Burglary example – Where counsel’s
statement at oral argument that “the
defendant kicked in the door of the house”
was considered an adoptive admission that
the prior conviction was a burglary to a
dwelling.
The Argument,
Cont’d
•
Consider filing a motion to argue your case
in
camera
if you feel your client might be in
danger by arguing his case in public. Can be
used in cases where in your argument you will
be discussing your client’s extensive
cooperation against all of the co-defendants.
OA – Tips from Former Chief
Judge Dubina
•
Joel F. Dubina,
How to Litigate Successfully in
the United States Court of Appeals for the
Eleventh Circuit. 29 Cumb. L. Rev. 1 (1999).
•
Be courteous and polite;
•
Get right to the issues;
•
Don’t dwell on the facts;
•
Answer the Judges Questions directly and
precisely;
•
Learn to Overcome Fear;
•
Educate and Teach the Court
OA Tips,
Cont’d
•
Cite to Supreme Court and Eleventh Circuit
Authority. NOTE – what about unpublished
Eleventh Circuit decisions?
•
Keep in mind that the brief is critical -- Thus,
know what is in your brief and the
Government’s brief.
•
Know the Standards of Review;
•
Know the Record;
•
Don’t make a jury argument;
•
Know when to sit down;
•
In concluding, tell the Court what you want.
Rebuttal Argument
•
Always, Always save time for rebuttal – even in
a multi defendant case.
•
Get directly to the points you want to address;
•
Cannot argue issue in rebuttal that you did not
raise during your initial argument.
•
Answer questions that the court raised during
Appellee’s presentation.
•
Correct any factual misstatements made by
opposing counsel. Do it nicely!
After the Argument
•
Keep checking the case law on your issues. If
a supplemental case is decided, file a
supplemental authority letter.
•
Write your client a letter (or schedule a prison
call) telling him about the oral argument and
answering any questions he has about the
argument and/or the case.
The End
•
Any Questions, contact me at:
Jim_Skuthan@fd.org
Understand the process of oral arguments in the Eleventh Circuit, including when to request oral argument, FRAP 34 guidelines, and how to handle the notice of oral argument. Get insights on making the most of oral argument opportunities and potentially shaping circuit law.
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Presentation Transcript
Getting Ready For Oral Argument Jim Skuthan Federal Defender s Office Middle District of Florida Jim_Skuthan@fd.org
Some Things to Know About OA Most Cases in the Eleventh Circuit Are Decided Without Oral Argument. Oral arguments are heard in Atlanta, Miami, Jacksonville and Montgomery. Learn the process of how cases are decided in the Eleventh Circuit. Review Excellent Source Materials on oral argument in general and how the Eleventh Circuit specifically handles assignment of cases and oral argument (see handout).
Getting Started 11th Circuit Rule 28-1(c), Statement Regarding Oral Argument in the Initial Brief. See also pages 47 and 58 - 59 of the Federal Defender Appellate Manual. A short statement of whether Oral Argument is requested and if so why. Should be requested in every initial brief unless some good reason not to. Not surprisingly, the government usually does not request oral argument when they are the Appellee.
FRAP 34. Oral Argument Oral argument must be allowed in every case unless a panel of three judges, who have examined the briefs and record unanimously agrees that the oral argument is unnecessary for any of the reasons: (A) the appeal is frivolous; (B) the dispositive issue or issues have been authoritatively decided; (C) the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by OA
Most Cases Are Decided Without Oral Argument Bottom line if you get oral argument, make the most of it. Your case may make new law for the Circuit.
Getting the Notice of OA -- Several months before Oral Argument week, you will get a notice of the week that oral argument will be held and the location. For this notice, you will not be told the judges on your panel and you will not be given a specific date for your argument. -- Upon getting the notice, you will call the clerk and request one of the four days of the week listed in the notice. -- Should call AUSA to see if you and her can agree to request a specific date.
If youve never done an oral argument in the 11th COA before, suggest you don t request the first oral argument day of the week. Why? If you have never done an OA before, may want to attend the oral arguments the day before your argument to get a feel for the panel and to familiarize yourself with the courthouse and the procedure.
Moot Court and Brainstorming As soon as possible, contact the appellate division of the FPD Office and request to schedule a moot court with the appellate division. Do this as soon as you get notice of OA. Rosemary_Cakmis@fd.org
Issues to Think About Argument Time Typically, you will only get fifteen minutes to argue your case. As the Appellant, you will be able to split your fifteen minutes between your initial argument and a rebuttal argument. Rebuttal argument is not required, but in almost every case you will want to reserve at least a few minutes of your argument for rebuttal. Why? To correct any factual errors in Appellee s argument and to respond to Appellee s legal argument.
Argument Time, Continued How do you apportion your fifteen minutes to cover ALL of your issues. Example Your case on appeal involves the following: 1. A dispositive motion to suppress; 2. A multiple count indictment; 3. A four day trial involving several evidentiary objections; 4. A sufficiency of evidence claim; 5. Several sentencing issues.
Argument Time, Continued Importance of moot court preparation and brainstorming issues with your moot team. Carefully craft a motion asking for additional Oral Argument time. Ask for more than you need, but be reasonable. i.e. if you ask for 30 minutes per side, they may give you five or ten additional minutes per side to argue. Government will get same total amount of time that you get.
Argument Time, Continued Possible Ethical Issue Client wants you to argue the sufficiency issue, which you believe is the weakest issue in the brief. You want to spend your time on the sentencing issue, which you believe is the reason why the Court granted oral argument. What do you do?
OA With Co-Defendants With multi-defendant cases, the Appellants, together, only get a total of fifteen minutes to present all of the Appellants arguments. Meet soon after oral argument is granted with co-counsel and decide : 1. What issues to argue; 2. Who will argue the main issues on behalf of the group (i.e. sufficiency of evidence; dispositive suppression issue, etc.) 3. What individual issues will be argued (i.e. one of the three co-defendants has a career offender issue).
OA with Co-Defendants, Contd 4. Make sure you reserve at least a few minutes of rebuttal time; 5. File an early, carefully crafted motion asking for additional oral argument time. Discuss in your motion the number of issues, the number of defendants and the complexity of your case. 6. If applicable, discuss in your motion that the defendants have antagonistic defenses and/or separate, substantive issues. 7. Finally, contact FPD office to schedule moot and brainstorming session.
Preparing Your Argument From the time you file your briefs until the time you have been notified you will get oral argument, several months may have passed In the weeks leading up to your court date, develop a plan for preparing your argument. Some suggestions: Know the court rules; Reread the entire Appendix carefully (Avoid the temptation of relying on your memory as to what happened in the district court);
Preparing Your Argument, Contd Reread your brief carefully; Reread the Government s brief; Reread the district court s rulings; Reread key cases; Start preparing an outline for your argument. Don t wait until the last minute!!
Two Weeks Before the OA Contact the COA and find out which judges will be on your three judge panel and find out everything you can about those judges. Determine if any of the three judges were on panels that decided cases cited by you or the government in the briefs. Know those cases well and expect those judges to question you carefully about those prior decisions. The Eleventh Circuit has only twelve active judges. Thus, a good likelihood your panel will include Senior 11th Circuit judges, Circuit Judges from other Circuits and District Judges.
Reach out to attorney in those circuits and districts to find out more about the judges on your panel who are not on the Eleventh Circuit.
Brainstorming and Moot Preparation Brainstorming is not the same as a moot court argument. From the time you find out you have oral argument, you should start the brainstorming process. Contact our office and contact other seasoned appellate lawyers to brainstorm and discuss your issues and the best way to present them in oral argument. Within two weeks or your oral argument, do an actual moot argument with lawyers posing as questions asking questions.
Logistics Murphys Law Applies If you ve never argued before the 11th COA, try to attend the arguments before your panel the day before. If you can t make it to arguments the day before, at least book a flight that gives you plenty of time to rest and prepare the day before the argument. Visit the courthouse to know its exact location. Stay in a hotel within walking distance of the COA. Book early or the Government attorneys will reserve all of the government rate rooms!
Day Before Oral Argument Day before Check to see if any new cases decided that apply to your case. If so, print four copies and bring to argument with you the next day. Clerk will have a form you can fill out with last minute supplemental authority. Supplemental Authority is NOT a case that was decided before your brief was filed!
Oral Argument Day Arrive Early!! Everyone arguing has to check in at least thirty to sixty minutes before the first oral argument of the day. Example The first case being argued begins at 9 am. Your case is scheduled for argument at 11 am. You still will be required to check in between 8:00 and 8:30 am even though your case won t be argued until later.
OA Day Checking In At check in, the Clerk will give you the final timetable for the arguments. Although rare, sometimes the order of cases is switched on the day of the argument. Be ready to argue your case first even though you are scheduled last. If you are the Appellant, the clerk will ask you how much time you want to reserve for your rebuttal. Give the clerk any last minute supplemental authority that you may have discovered.
OA Day The Argument Be Aware of the lighting system. When the argument begins, the light will turn green. When you are two minutes from the end of your argument, the light will turn yellow. When your time is up, the light will turn red. When the light turns red, you will need to stop your argument. If in mid-sentence, you can finish your sentence. For your rebuttal argument, there will be no yellow light. A large, visible clock will count down the time.
The Argument, Contd Know the names of your judges and their correct titles. i.e. Chief Judge Carnes; Judge Wilson, etc. At the commencement of the argument, the Court may identify the issue(s) that it wants the parties to address. Assume that the court is familiar with the record so get right to your argument. Don t read your argument. The rules tell you not to read your argument. Focus on the judges and respond directly to their questions.
The Argument, Contd Acknowledge weaknesses in your argument. However, DON T make concessions that can be interpreted as an adoptive admission on your behalf. Burglary example Where counsel s statement at oral argument that the defendant kicked in the door of the house was considered an adoptive admission that the prior conviction was a burglary to a dwelling.
The Argument, Contd Consider filing a motion to argue your case in camera if you feel your client might be in danger by arguing his case in public. Can be used in cases where in your argument you will be discussing your client s extensive cooperation against all of the co-defendants.
OA Tips from Former Chief Judge Dubina Joel F. Dubina, How to Litigate Successfully in the United States Court of Appeals for the Eleventh Circuit. 29 Cumb. L. Rev. 1 (1999). Be courteous and polite; Get right to the issues; Don t dwell on the facts; Answer the Judges Questions directly and precisely; Learn to Overcome Fear; Educate and Teach the Court
OA Tips, Contd Cite to Supreme Court and Eleventh Circuit Authority. NOTE what about unpublished Eleventh Circuit decisions? Keep in mind that the brief is critical -- Thus, know what is in your brief and the Government s brief. Know the Standards of Review; Know the Record; Don t make a jury argument; Know when to sit down; In concluding, tell the Court what you want.
Rebuttal Argument Always, Always save time for rebuttal even in a multi defendant case. Get directly to the points you want to address; Cannot argue issue in rebuttal that you did not raise during your initial argument. Answer questions that the court raised during Appellee s presentation. Correct any factual misstatements made by opposing counsel. Do it nicely!
After the Argument Keep checking the case law on your issues. If a supplemental case is decided, file a supplemental authority letter. Write your client a letter (or schedule a prison call) telling him about the oral argument and answering any questions he has about the argument and/or the case.
The End Any Questions, contact me at: Jim_Skuthan@fd.org
