The parties in an appeal are entitled to present an oral argument. An oral argument is the opportunity to argue the case in person and to engage in a dialogue with the justices who will decide the case.
Oral argument takes place after the briefing in the case is complete. So it is a chance to highlight or clarify a party’s best arguments for the justices. Importantly, however, the parties are usually not permitted to raise new issues at oral argument if they were not addressed in their briefs.1
Appeals in the California Court of Appeal are decided by a panel of three justices.2 As such, there will be three justices who listen to the argument of the parties at oral argument.
The Right to Oral Argument
California law regards oral argument as a right if the justices intend to decide the case on its merits with a written opinion.3 It is also possible that parties have a right to orally argue motions to dismiss an appeal or summarily decide a case,4 even though the disposition of those issues often does not involve the issuance of a written opinion.
But there is generally no right to orally argue motions, requests, applications, or petitions before the California Court of Appeal.5 It is, however, possible that the court will exercise its discretion to hear oral arguments under the right conditions.6
Of course, like any right, the right to participate in oral argument can be waived.7 This might happen when the party fails to properly request oral argument, they file a formal waiver of oral argument, or they fail to show at the time scheduled for oral argument.
If the right to oral argument is waived by both parties, the case will be submitted on the briefs. Meaning, the justices will decide the case using only the record on appeal, the briefs on the party, and their own legal research.
Requesting or Waiving an Oral Argument
Oral argument procedures vary, depending on the district in which the appeal is pending. The parties will generally receive a letter from the court advising them of their opportunity for an oral argument. That letter is typically sent after briefing is completed.
Some districts automatically schedule an oral argument. They may, however, ask parties to respond to the notice of oral argument by providing an estimate of the time they will need. If a party fails to respond to that request, the court may assume that the party is waiving the opportunity for oral argument. If neither party responds, the court may cancel the argument.
Some districts provide parties with notice that they must request oral argument. The court may also provide a form for that purpose. A failure to make that request might be construed as a waiver of the right to make an oral argument.
It is important to carefully follow the instructions outlined in the court’s letter. If any document requesting or waiving oral argument is filed with the court, it must first be served on the other parties in the case and a proof of service must be attached to the filed document.
In general, only a party that has filed a brief may request oral argument. So, if the respondent (the party opposing the appeal) fails to file a brief in the case, they generally have no right to request oral argument.8
Oral Argument Procedures
After the court schedules the argument, the parties will receive a notice of both the time and place where the argument will be held.9 This notice is normally sent out at least 20 days before the date of oral argument.
As mentioned above, failure to appear will result in a waiver of the right to present an oral argument. But if there is a schedule conflict that is known in advance, the courts will sometimes grant a written request to continue the oral argument to a different date. The exact procedures to file a continuance request will vary depending on the district (as will the likelihood that the request will be granted).
The maximum amount of time each side receives for an oral argument is 30 minutes.10 Some courts automatically schedule a shorter argument unless the parties request a longer one.
If there is no label, there are no strict rule where the parties should sit (although it is traditional for appellant to sit on the right side of the podium and the respondent to sit on the left).
During oral argument, the appellant will have the first opportunity to speak. The appellant can reserve a portion of its argument time for rebuttal. To do so, the person conducting the argument should tell the court when the case is called that they wish to reserve time for rebuttal.
If you are the appellant and you decide to ask for 10 minutes in which to present your oral argument, you might want to reserve 2 minutes to respond to arguments made by the respondent. You would then give an 8-minute argument, listen to the respondent’s argument, and give a 2-minute rebuttal argument.
When your time expires, you will receive a signal. At that point, you should thank the court and return to your table. If you are in the middle of a sentence, however, you can ask the court for permission to finish it.
The procedure the courts follow on the day of argument vary a bit from district to district, and even from panel to panel. Some courts set the order of the cases to be argued in advance, while other courts wait until the parties arrive to decide the order in which cases will be argued.
The parties probably will not know the exact time of their argument in advance. Some cases settle and parties occasionally decide to waive argument, so the argument schedule is necessarily fluid. Parties should arrive in court early and be prepared to argue their case whenever it is called.
Making an Oral Argument
An oral argument that merely restates the content of the briefs is of little value to the justices. You should assume that the justices have read the briefs. Think about how you can amplify your strongest arguments or bolster your weakest ones.
Time passes quickly during an oral argument. The best strategy is sometimes to start with your strongest argument. If you think the trial judge clearly failed to follow the law and if that failure caused a denial of justice, explaining your reasoning in simple but forceful language will probably be the best use of your time.
Justices often use oral argument to clarify facts or positions that are not clear from the briefs. Justices therefore tend to use much of the argument time posing questions and listening to the parties respond. Answering those questions directly and convincingly in a way that benefits your case will be of more value than regurgitating arguments that you already made in your brief.
Since you will probably be asked questions, sticking to a script is a bad idea. A justice will probably interrupt your argument to ask a question, and the question may be entirely unrelated to what you are arguing at that moment.
You need to be flexible in your presentation so that you can answer the court’s questions. Arguing from an outline of the key points you want to make is better than arguing from a script.
Justices sometimes play “devil’s advocate” when they ask questions. For that reason, the questions the justices ask do not necessarily provide an indication of how they are thinking about the case.
Some districts issue a “tentative decision” before oral argument. The tentative decision may be sent to the parties in advance of the argument or it may be available on the day of argument, before the justices take the bench. Reviewing the tentative decision, if there is one, gives you the chance to tailor your argument to errors that you perceive in the court’s reasoning.
Addressing New Authority
As mentioned above, issues and cases that were not mentioned in the briefs generally cannot be raised for the first time during oral argument.13
In some cases, however, there will be a substantial period of time between when the briefs are filed and when oral argument takes place. In those situations, there may be legal or factual developments that are relevant to the justices’ decision.
If a party learns of new legal authority that is relevant to the case, they can inform the court of the authority by filing a letter.14 The letter should provide a citation to the authority and identify the issue on appeal to which it is relevant.
There is no strict deadline for a letter identifying new authorities. In fact, such a letter can be filed any time before the court files its opinion—even after oral argument. But the letter should be filed “as soon as possible after the party learns of the new authority.” If the letter is served and filed after oral argument, the letter may address only new authority that was not available in time to be addressed at oral argument.15
The parties are prohibited from arguing or discussing the authority beyond in the letter, beyond merely identifying the issue on appeal to which it is relevant.16 But submitting this kind of letter in advance of oral argument will permit the case to be discussed and argued further at that time.
As with any other document, a letter identifying new authorities must first be served on the other parties in the case and a proof of service must be attached to the filed document.
People v. Harris (1992) 10 Cal.App.4th 672, 686 [“It is a clearly understood principle of appellate review, so well established as to need no citation to authority, that contentions raised for the first time at oral argument are disfavored and may be rejected solely on the ground of their untimeliness.”].Footnote 1
Cal. Const. art. VI, § 3 [“The Legislature shall divide the State into districts each containing a court of appeal with one or more divisions. Each division consists of a presiding justice and 2 or more associate justices. It has the power of a court of appeal and shall conduct itself as a 3-judge court. Concurrence of 2 judges present at the argument is necessary for a judgment.”].Footnote 2
Moles v. Regents of University of California (1982) 32 Cal.3d 867, 872 [the right to oral argument in civil appeals, as well as criminal appeals, “is also found in the state Constitution and in prior case law.”]; People v. Brigham (1979) 25 Cal.3d 283, 285 [“The right to oral argument on appeal is recognized in the California Rules of Court, the Penal Code, the state Constitution, and prior decisions of this court.”].Footnote 3
People v. Brigham (1979) 25 Cal.3d 283, 288 [“The case law, the constitutional provisions, the applicable rules of court and the Penal Code sections all point to one result, the Court of Appeal cannot summarily affirm a criminal conviction without first holding oral argument.”].Footnote 4
Metropolitan Water Dist. v. Adams (1942) 19 Cal.2d 463, 468.Footnote 5
See, e.g., People v. Brigham (1979) 25 Cal.3d 283, 289 [noting that in one case the Court of Appeal granted a motion for reversal, but only after oral argument was held on the motion at which the merits of the appeal and the motion were debated].Footnote 6
Cal. Rules of Court, rule 8.256, subd. (d)(1) [“A cause is submitted when the court has heard oral argument or approved its waiver and the time has expired to file all briefs and papers, including any supplemental brief permitted by the court.”].Footnote 7
Cal. Rules of Court, rule 8.220, subd. (a)(2) [if no respondent’s brief is filed “the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant”].Footnote 8
Cal. Rules of Court, rule 8.256, subd. (b) [“The Court of Appeal clerk must send a notice of the time and place of oral argument to all parties at least 20 days before the argument date. The presiding justice may shorten the notice period for good cause; in that event, the clerk must immediately notify the parties by telephone or other expeditious method.”].Footnote 9
Cal. Rules of Court, rule 8.256, subd. (c)(2) [“Each side is allowed 30 minutes for argument. If multiple parties are represented by separate counsel, or if an amicus curiae-on written request-is granted permission to argue, the court may apportion or expand the time.”].Footnote 10
The appealing party is called the appellant.Footnote 11
The party opposing the appeal is called the respondent.Footnote 12
People v. Harris (1992) 10 Cal.App.4th 672, 686.Footnote 13
Cal. Rules of Court, rule 8.254, subd. (a) [“If a party learns of significant new authority, including new legislation, that was not available in time to be included in the last brief that the party filed or could have filed, the party may inform the Court of Appeal of this authority by letter.”].Footnote 14
Cal. Rules of Court, rule 8.254, subd. (c) [“The letter must be served and filed before the court files its opinion and as soon as possible after the party learns of the new authority. If the letter is served and filed after oral argument is heard, it may address only new authority that was not available in time to be addressed at oral argument.”].Footnote 15
Cal. Rules of Court, rule 8.254, subd. (b) [“The letter may provide only a citation to the new authority and identify, by citation to a page or pages in a brief on file, the issue on appeal to which the new authority is relevant. No argument or other discussion of the authority is permitted in the letter.”].Footnote 16