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HOW TO PREPARE FOR ORAL ARGUMENT

by | Apr 11, 2024

ERIC J. KUPERMAN, ESQ. | Executive Vice President of Sales | PHP

To effectively prepare for oral argument at the Appellate Division, numerous factors and considerations must be taken into account. Of course, those arguing an appeal must know the Appellate Division is typically a “hot bench.” This means that counsel should be prepared to be peppered by the panel with questions and inquiries into the intricacies of the appeal. They should not be expecting to show up with a prepared speech to give. It is likely that within seconds of introducing oneself to the panel and indicating whom you represent, the Bench will spring forth with detailed questions as to the facts of the case, the applicable law and problems which present themselves to both Appellant’s and Respondent’s counsel.

All of this said, one should be prepared with a clear introduction, a statement of the issues, your arguments and a firm conclusion. However, you must be prepared to address the questions as they come from the Court. And very often, those questions can come in rapid succession from the panel.

You may presume when going into argument that all of the briefs submitted by counsel for all parties have been fully read, digested and considered by the panel hearing argument. Thus, there is generally no reason to start from scratch and explain the genesis of the case. Rather, one should focus on the strengths of one’s case at the outset and make the strongest arguments available. It is also advisable to anticipate questions based on the weaknesses presented by your case and be prepared to address those issues concisely and succinctly. You should be aware that although one may have requested 10 or 15 minutes of argument time, invariably, the Appellate Division will cut that time down dramatically and you will have only a few minutes to make your salient points to the Court.

For those who are before the Appellate Division regularly, they are accustomed to the process and procedure on the date of argument. For everyone else, it would be wise to sit in on oral argument in the weeks prior to your case being scheduled just to get accustomed to the environment. In addition, many find it helpful to assemble a “mock” bench before whom you can argue during practice sessions. In that way, you may be better equipped to handle objections to your positions taken in your brief. It will also enable you to maintain your composure when the time for argument is at hand. The bottom line is that preparation is key and will be the difference between an effective and ineffective experience before the Appellate Division.

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