Oral Argument in the United States

Practical Information

The spoken presentation by counsel of a client’s case before an apellate court (in U.S. law) . In some cases, the lawyer feels that the brief (in U.S. law) is sufficient and does not choose to argue the case upon appeal (in U.S. law). If the lawyer does want to appear before the appellate court, he or she makes application for oral argument at the same time the brief is filed. A copy of the application is served on opposing counsel in the same manner that the brief is served. (Revised by Ann De Vries, 1982)

What is Oral Argument?

Oral Argument in the Context of Law Research

The Thurgood Marshall School of Law Library defined briefly Oral Argument as: A spoken presentation of reasons for a desired decision directed to an appellate court by attorneys for the parties.Legal research resources, including Oral Argument, help to identify the law that governs an activity and to find materials that explain that law.

Oral Argument Definition in the context of the Federal Court System

An opportunity for lawyers to verbally summarize their positions before the court and answer the judges’ questions. For a meaning of it, read Oral Argument in the Legal Dictionary here.

Supreme Court of the United States: Briefing and Oral Argument

Introduction to Oral Argument

“When the Supreme Court agrees to hear a case, the parties’ lawyers submit briefs before oral argument. A brief includes a written statement of the facts of the case, a discussion of the law and precedents, and an argument that shows how the law should be interpreted in the party’s favor. In 1980 the Court established a rule that limits briefs to 50 pages. The justices read the briefs and the record of the case from the lower court quite thoroughly. Justices and advocates over the years have said that many cases are won or lost on the strength of the briefs. In addition to the parties’ briefs, the Court occasionally permits individuals and groups with an interest in the case to file an amicus curiae, or friend-of-the-court, brief. An amicus brief allows parties not directly involved in the case to offer their views about the issues at stake and the likely impact of a decision. The United States and state governments may file amicus briefs in particular cases without requesting permission. In important cases, dozens of such briefs may be filed.

After briefs are submitted, the justices set a date for oral argument. In private cases, a lawyer represents each party. The Court appoints a lawyer to present appeals on behalf of individuals too poor to pay their own expenses. The solicitor general, the third-ranking official in the Department of Justice, presents the government’s position in cases involving the federal government. States have their own rules for determining who will appear when they are parties to Supreme Court appeals.

In the early years of the Court, oral argument in a single case could go on for days, and the leading orators of the time would draw crowds to hear them debate. Today the process is strictly regulated. In all but the rarest cases, each side has exactly 30 minutes to present oral arguments to the justices. Typically, the advocate begins to state his or her position, only to be interrupted by questions from the justices that last through the allotted time. At the end of 30 minutes a red light at the lawyer’s lectern turns on, and the lawyer is told to stop, sometimes even in midsentence. The oral arguments can be decisive. It is the only opportunity to give direct answers to pointed questions. Charles Fried, a former solicitor general, has written that “a successful oral argument is more like a compelling conversation than a lecture.”

All nine justices sit to hear the oral arguments. The Supreme Court does not sit in smaller panels, except in cases of illness or when a justice recuses (disqualifies) himself or herself from participating, perhaps because of a relationship with one of the lawyers or because of some personal interest in the case. At least six justices must be present to hear oral arguments. The public may attend all oral arguments, which are held in the main courtroom on the first floor. Since 1955 oral arguments have been officially taped, and in recent years they have been made available for listening and purchase by the public. Obtaining the audiotapes can be a time-consuming process, however. The Court bars all other tape recorders, cameras, and other recording devices, so journalists covering the Court must rely on official transcripts and on artists’ sketches of the proceedings.” (1)

Scheduling and Preparation

The Court generally hears argument in two cases each day beginning at 10 a.m. and adjourns after the argument in the second case ends, usually around noon. If more than two cases are to be argued in one day, the Court will reconvene at 1 p.m. Rules 27 and 28 contain additional information concerning oral arguments.

When a case has been calendared for argument, the Clerk will send a notice to counsel. Please note that after the argument schedule is set, the Clerk cannot make changes. If counsel have any longstanding professional or religious commitments or for some reason cannot appear for oral argument on any date in the future (particularly within the two argument sessions following the due date of respondent’s brief), these matters must be called to the Clerk’s attention by letter with a copy to opposing counsel. To the extent possible, the Clerk will endeavor to schedule the oral argument to avoid conflicts.

Day of Argument

Arguing counsel and co-counsel who will be seated at the counsel tables for cases to be argued in the morning must report to the Lawyers’ Lounge on the first floor of the Court between 9:00 and 9:15 a.m. on the day of argument. The Clerk will brief counsel at this time on Courtroom protocol,answer any last minute questions they may have, and issue counsel and co-counsel identification cards. Arguing counsel and co-counsel whose cases are scheduled for the afternoon session need not be present in the morning for the Clerk’s briefing or the oral arguments.

The Court has a residential corps of journalists who follow its docket closely. Transcripts of oral arguments are posted on the Supreme Court website on the same day the argument is heard by the Court.

Seating for Counsel

When only one counsel is to argue a case per side, the arguing counsel and three co-counsel will be accommodated at the table. If divided argument has been granted and two counsel are to argue on the same side, the Court will accommodate only one co-counsel per each arguing counsel at the table.

It is appropriate for co-counsel to occupy the arguing counsel’s chair when the latter is presenting argument. Except in extraordinary circumstances, co-counsel should not pass
notes to arguing counsel during argument.

In the Courtroom-Order of Business

The Chief Justice makes routine announcements (e. g. orders are released). Opinions, if any, are then released. The authoring Justice will read a summary of the opinion; this takes about five minutes for each opinion. Motions for admission to the Bar occur next. The Chief Justice will then announce that the Court will hear argument in the first case for argument that day.

Oral Argument and the United States Constitution

According to the Encyclopedia of the American Constitution, lawyers argue points of law orally before courts at all levels. The Supreme Court regulates oral argument by court rule. Some cases are decided summarily, without full briefing and argument, on the papers filed by the parties seeking and opposing Supreme Court review.

Concept of Oral Argument

In the U.S., in the context of Judiciary power and branch, Oral Argument has the following meaning: Verbal presentations from attorneys representing both sides, before appellate courts. Courts of Appeals and the Supreme Court use oral arguments, written briefs, and their internal discussions and arguments as material to help them make their decision. (Source of this definition of Oral Argument : University of Texas)

Oral Argument

Presenting Oral Argument (in Disability Claims)

Some information about Presenting Oral Argument in this context.

Oral Argument Before the Appeals Council (in Disability Claims)

Some information about Oral Argument Before the Appeals Council in this context.

Preparing For Oral Argument (in Disability Claims)

Some information about Preparing For Oral Argument in this context.

Resources

See Also

• Judiciary Power
• Judiciary Branch

Presenting Oral Argument (in Disability Claims)

Some information about Presenting Oral Argument in this context.

Oral Argument Before the Appeals Council (in Disability Claims)

Some information about Oral Argument Before the Appeals Council in this context.

Preparing For Oral Argument (in Disability Claims)

Some information about Preparing For Oral Argument in this context.

Resources

Notes and References

• Information about Oral Argument in the Encarta Online Encyclopedia

Guide to Oral Argument