What’s An Oral Argument Held in Conjunction with an Appeal? Do I Want One? Can I Get One?
Relative to almost two million criminal and civil cases handled in Indiana trial courts currently, appeals are very rare in statistical terms. According to the 2010 Annual Report of the Court of Appeals of Indiana, there were only 4,392 appeals filed and 315 oral arguments held on cases pending. At Ciyou & Dixon, P.C., we represent appellants (who lost below), as well as appellees (who prevailed below).
For appellants, individuals or business clients, this situation is often a frustrating, scary and a desperate time. They lost their case and want to try to redress it on appeal. Following losing, a few appellants seek to have the trial court “stay” (stop) the order (under which they lost) from being enforced pending appeal. If the trial court denies this, the Court of Appeals may also issue stays. These are rare.
Wanting every measure taken on appeal, during the course of the briefing, with appellants in particular, the topic of an oral argument is discussed. These are governed by the Indiana Rules of Appellate Procedure, as well as some effectively unwritten customs. The first and most important point to understand is what an oral argument is.
This is where the appellate lawyers go into the Court of Appeals courtroom (located in the Statehouse) and with a fixed amount of time set by the Court, get to argue the merits of the case and law set out in the brief. An average amount of time is 20 minutes for each segment.
Like appellant’s briefing, the appellant (typically the loser below) goes first, but may withhold an amount of time for rebuttal, such as 18 minutes for argument and 2 minutes for rebuttal after the appellee’s attorney argues his/her case.
In reality, the process that occurs when the oral argument begins is organic. The appellate judges may pepper an attorney with questions or may allow the attorney to make the arguments he/she thinks is critical to the case without many or any questions. The same goes for the appellee’s counsel.
A number of colored lights notify the attorney as to the time they have remaining (like a mini-stoplight). Good appellate advocates not only prepare for logical arguments, but the reasonable permutations and extensions or developments of the law that might come up in oral arguments.
Now that you understand what an oral argument is in some depth, the next question we receive is “Do I want one.” For the most part, the dedicated appellate judges do not have much, if anything, to obtain about a case from an oral argument. This is perhaps reflected in the small number of oral arguments relevant to the small number of appeals relative to trial. These are routine appeals and do not involve changes or extensions or new applications in the law.
In addition, well prepared oral arguments are expensive. This is game day and a few minutes is a very short time to put forth the key elements that justify the oral argument to the end of prevailing on appeal. This requires a distilled version of the facts and law to be reduced to internal memory of the appellate lawyer, much as if it were events he or she lived through. How do you tell “your” story in a short time? What is key? This takes a lot of time for an appellate advocate to do, and thus is expensive.
This noted, Ciyou & Dixon, P.C. advocates observe two (2) general reasons clients may want to consider or obtain an oral argument. The first is because it is another step that even if it has little potential to inform the case, the party needs to know everything that can be done is (and was done). Some of this is human nature and important to litigants in living with the outcome and bringing closure to a win or loss. As a general rule, these are not good cases for appellate argument.
The second is when there is a case that is larger than itself. For instance, if the law is ambiguous or a new statute is applied, these are cases that are more likely to be granted an oral argument. In addition, constitutional arguments are also relatively rare and anecdotally more likely to be ripe for oral argument. Ultimately, the Court of Appeals decides.
An example of the latter is the case of In re the Paternity of K.D. , where the issue was whether the trial court’s order was a prior restraint against mother’s right of free speech to criticize the judicial system. Constitutional rights are the very legal fabric that ties our society together and are given perhaps more deference for oral argument by the Court of Appeals.
By the way, and tracking back to the first point, namely what an oral argument is, the old adage, “a picture is worth a thousand words”, may be correct. Watching an oral argument is a good way to also learn about the process. This can be accomplished by watching the oral argument on the case above by clicking the hyperlink here or above.
All of this is well and good, but oral arguments are a tremendous expenditure of judicial resources. Typically, the three (3) judges who will decide the case (called the writing panel) hear the oral argument. These are simulcast throughout the country and have multiple support staff involved in an oral argument. So there is a significant taxpayer and judicial expense to oral arguments.
Oral arguments are not merely granted because an appellate party wants one. There are two (2) ways the oral argument may be granted and ordered. The most common is by a party making a motion with the court of appeals. As a general rule, this must be made no later than seven (7) days after the last briefing is due. In rare cases, the Court of Appeals may set an oral argument on its own motion.
If you are considering an appeal, or involved in the appellate process, we at Ciyou & Dixon, P.C. hope you find this blog post about oral arguments useful. Oral arguments play a key role in some cases in the Court of Appeals. However, they are rare and this is a conversation you should have with your appellate advocate. This blog post is written by attorney Bryan L. Ciyou. Ciyou & Dixon, P.C. advocates practice throughout the State of Indiana.