Does Oral Argument Matter

A perennial question asked by appellate advocates is whether oral argument matters. Do their arguments have an impact on the decision-making process, and can they affect the outcome of a proceeding?

At the Supreme Court level, Justice Ian Binnie and Chief Justice John Roberts both say that oral argument does matter, and they give the same reason: the Court conference that takes place after the conclusion of oral argument. The conference represents the first opportunity the judges have to discuss their views of the case, and it’s therefore only natural that the oral argument figures in the discussion.

In “A Survivor’s Guide to Advocacy in the Supreme Court of Canada” (1999), 18 Adv. Soc. J. No. 2, Justice Binnie put it this way:

“Once oral argument is heard, the court wants to capitalize on some of the adrenalin pumping around the courtroom to, as Justice Estey used to say, ‘get this baby airborne.’  The ‘sundown rule’ is a good thing from the lawyers’ perspective. It allows your advocacy real impact by giving you a voice in the decision-making process at the moment it counts most…From the judges’ perspective, the appeal has gone through a process of            ever-increasing distillation and concentration. At the time of the initial preparation there is an enormous amount of paper flowing around. Bench memos are written, the facta are gone through, the leading cases are looked at and the judge comes to terms with what the appeal is all about. The oral hearing is still more focussed. When the argument moves back into the conference room it is distilled down to its most critical essentials. Thus, oral submissions should narrow, not broaden, the area of controversy.”

In “Oral Advocacy and the Re-emergence of a Supreme Court Bar” (2005), Journal of Supreme Court History, 68, Justice Roberts made a similar point:

“Oral argument matters, but not just because of what the lawyers have to say. It is the organizing point for the entire judicial process. The judges read the briefs, do the research, and talk to their law clerks to prepare for the argument. The voting conference is held right after the oral argument – immediately after it in the court of appeals, shortly after it in the Supreme Court. And without disputing in any way the dominance of the briefing in the decisional process, it is natural, with the voting coming so closely on the heels of oral argument, that the discussion at conference is going to focus on what took place at argument.”

These comments have important implications for appellate advocates. They suggest that counsel should spend their preparation time identifying the key point at issue in the appeal, and then focus their oral argument like a laser beam on providing the necessary help to the Court in finding the right solution to the problem. By putting themselves in the position of the Court, advocates can best ensure their oral argument will have an impact on the outcome.


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