Oral Arguments Guide for Counsel - page 8

5
GUIDE FOR COUNSEL, PART II
In addition, the following are excellent sources of information for counsel to consult in
preparing for argument:
Making Your Case: the Art of Persuading Judges,
by Justice Antonin Scalia
and Bryan A. Garner; Chapter 14, "Oral Argument,"
Supreme Court Practice
(9th ed.), by Eugene
Gressman, Kenneth Geller, Stephen Shapiro, Timothy Bishop, and Edward Hartnett; and
Supreme
Court Appellate Advocacy: Mastering Oral Argument,
by David Frederick.
2.
Time
Argument time is normally limited to 30 minutes. You need not use all your time.
In several
U.S. Supreme Court cases, counsel for respondents used only a third or less of the time allotted and
nonetheless prevailed in their cases. For example, counsel for the respondent in
Burgess v. United
States
, 553 U.S. 124 (2008), argued for only 7 of the allotted 30 minutes and yet prevailed in a
unanimous decision of the Court.
There is a digital clock on the podium that will show your allotted time for argument. If your
time expires while you are answering a question froma Judge, unless asked to stop youmay continue
your answer and respond to any additional questions from that Judge or any other Judge. Do not,
however, continue your argument without leave of the Court.
In a divided argument, it is effective for counsel to inform the Court of their argument plan.
For example, appellant's counsel might say: "I will address the relevant statutes and regulations and
counsel for the amicus will address the arguments of General Counsel."
Appellant's counsel who wants to reserve time for rebuttal should, prior to arguing, say: "I
would like to reserve __ minutes for my rebuttal." Appellant's counsel then argues, and the
Courtroom Clerk will set the time for 30 minutes minus the requested rebuttal time. Appellee's
counsel proceeds to the lectern, waits for acknowledgment by the Presiding Judge, and then opens
with the following: "Judge [Name of Presiding Judge], and may it please the Court." When
appellee's counsel has finished and gathered all items from the lectern, appellant's counsel should
return to the lectern and wait for acknowledgment by the Presiding Judge, at which time the
Presiding Judge will say, e.g.: "You have 5 minutes remaining." You may begin your rebuttal at this
time without having to repeat: "Judge [Name of Presiding Judge], and may it please the Court."
Following argument, the Presiding Judge announces: "The case is submitted." At this point,
the Presiding Judge may announce that the panel will greet counsel, at which time the Judges will
pass by counsel tables and greet counsel by shaking their hands . Promptly and quietly vacate the
front argument table after the Judges have departed and the Clerk has announced that “the Court is
in recess.”
3.
Protocol
The Court is not a jury. A trial lawyer tries to persuade a jurywith facts and emotion. At this
Court, counsel should try to persuade the Court by arguing points of law.
1,2,3,4,5,6,7 9,10,11,12,13,14,15
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