How Do Appellate Oral Arguments Differ From Trial Arguments?

Both trial and appellate attorneys are given the chance to present their arguments in the courtroom. But this is where the similarities largely end. The manner in which arguments are given, and their content, varies dramatically between the two forums.

While an attorney may be exceptional at presenting trial arguments, a different skill set is required for appellate oral arguments. Retaining a knowledgeable appellate attorney will prove indispensable in your California or federal appeal. Gusdorff Law is here to explain.

The Necessity and Purpose of Trial and Oral Arguments

Attorneys present arguments in every trial they conduct. They are generally given to a jury before the jury deliberates and returns a verdict. There are also occasions to argue points of law to the judge at various stages before, during, and after trial. It would be unthinkable for a trial attorney not to give arguments. But there is more of a judgment call when it comes to making oral arguments on appeal. Although appellate attorneys may present them, not all of them choose to do so.

Oral argument is optional in the California Court of Appeal, and the court will hear oral argument if one or both parties request it. The purpose is not simply to rehash what is contained in the appellate briefs.

An attorney may use this time to emphasize the most important issues in the appeal. Or, the appellate lawyer may want to offer justices a chance to ask how a potential ruling may affect existing case law. The need for, and objective of, appellate oral arguments is simply different from those at trial.

Time Constraints

As a general matter, trial lawyers have ample time to make their closing arguments and walk the jurors through the significance of the evidence they received during trial. That’s due in large part to the varying complexities of trials.

Some are relatively short, with few witnesses and simple issues. Other cases involve numerous witnesses and complicated, sometimes technical topics. The complexity of a case will affect how much direct- and cross-examination is required. In turn, this affects how long the opening and closing arguments will take.

Appellate attorneys do not have the luxury of time. In both the California Court of Appeal and the Ninth Circuit, attorneys are permitted about 15-30 minutes of oral argument. This includes the time it takes judges to ask questions and in the appellant’s case, any rebuttal argument. With such restrictions, an appellate attorney must be skilled at distilling the most important issues into relatively short arguments.

The Issues That Are Discussed

A trial attorney will argue both facts and law. For example, an attorney will complete cross-examination of a witness. If the witness inadvertently admitted something during cross-examination, there’s a good chance it will be mentioned during the closing argument. Both parties’ attorneys may argue points of law throughout the trial as well. For instance, the two sides may present legal reasons to admit or exclude pieces of evidence.

Appeals are not designed to retry the facts of the underlying case. Those are essentially set in stone at the trial level. Therefore, the appellate lawyer is concerned with arguing law. The objective is usually to demonstrate that a decision made at trial adhered to (or contravened) accepted legal standards. The appellate attorney will therefore explain how the trial court correctly or incorrectly applied the law.

Appellate attorneys are also cognizant of how the arguments they make will affect other cases. The decisions of the Court of Appeal or Ninth Circuit could impact many other litigants. Trial attorneys, meanwhile, focus upon a narrow set of facts and law that apply specifically to their cases. They are far less concerned with the wider implications of what the trial judge decides.

Need Help With Your California Appeal? Turn To Gusdorff Law

Janet Gusdorff has experience conducting oral arguments in California state and federal appellate courts. She understands whether and in what manner to employ what can be a useful tool in the appellant’s arsenal. To find out more about how we can assist with your appeal, give Gusdroff Law a call.

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