It’s been a while since I’ve posted any advice on oral argument, so I went Googling last night and turned up this gem from an old Howard Bashman weekly column at Law.com. It’s not so much about the argument per se as it is the preparation for oral argument, for good reason:
Appellate judges commonly report that oral argument changes their mind about the outcome of an appeal in only a small fraction of cases. However, I’ve always viewed that information as an invitation to become even more prepared to deliver an effective appellate oral argument.
Appellate judges may have a draft opinion prepared, and may rarely change their minds due to oral argument, but — according to at least one justice I’ve spoken to — sometimes they are actually looking for the appellate advocate to give them a reason to change their mind.
I am a civil trial lawyer and I do not do many appeals. My former law partner used to be very active doing appeals but I have a case before the sixth district now. It is an appeal of a jury trial on the most difficult basis of substantial evidence. My client really got screwed.
My former law partner says that oral argument only hurts you and I should not request it. I am fairly certain the defense will ask for it.
I have a good personality and am good at argument in superior court. Should I argue or not? I would appreciate so much your second opinion on this.
I am responding to your query via email.