After it has reviewed the briefs, the Court of Appeal will send a notice to counsel asking if oral argument is desired. A party has an absolute right to orally argue the merits of an appeal. (People v. Brigham (1979) 25 Cal.3d 283, 285-289.) Under Sixth District practice, oral argument will be deemed waived unless it is requested in writing within 10 days of the court’s notice.

The decision whether to request oral argument must be case specific. In our view, oral argument can be an important and helpful part of appellate representation. Many appellate justices agree. Thus, counsel should carefully consider whether a particular case should be orally argued. Factors that should be considered are your skills as an oral advocate, whether you feel you have a clear advantage at the close of briefing, and the need to discuss important new authority issued since the close of briefing. Also, if a speedy resolution is vital, waiver may be appropriate because requesting oral argument usually entails some delay in the submission of the case.

In essence, when you request oral argument, you are implicitly saying to the court that there is an issue in the case which is important to the client's interests, and has more than minimal arguable merit. If, after preparing for and listening to the argument, the court strongly disagrees with you on either point, your reception is likely to be a chilly one.

For example, if the issue in the case is weak, there is little potential benefit to attending oral argument. Also, if the issue is very simple, and you have nothing to add to the brief, a waiver is in order. Do not request oral argument in such a case, merely to stand up and ask if there are any questions. Usually there will not be, and the court will wonder why you requested argument if you had nothing to say. Also, if the remedy requested in the appeal is very minor, like the staying of a concurrent term, or the striking of a small fine, a waiver is indicated. The costs of oral argument in court preparation and in time and travel costs for both counsel are substantial, and should not be incurred in a case where there is little at stake.

Once oral argument is requested, it should not later be waived absent a change in circumstances. Requesting oral argument causes the court, its staff, and opposing counsel to prepare for the requested argument. A late waiver inevitably causes other people to waste their time. It also serves as a red flag that, on further consideration, counsel does not believe the case is very strong.

If illness or some other truly unforeseeable circumstance makes you unable to attend an oral argument, communicate the information as soon as possible to opposing counsel and to the clerk of the court. File a motion for a continued oral argument date. Be specific as to the circumstance which prevents your attendance. Do not offer to waive unless the client would be prejudiced by the delay. If the case was worth arguing in the first place, it should be worth arguing at a continued date.

Where only one appellant in a multiple appellant case requests argument, the Sixth District's position is that other appellants are not entitled to participate because they have not responded to the court's waiver letter. To protect your right to argue, you must separately request that the matter be placed on calendar for oral argument. Do not rely on a co-appellant's request.

Prior to oral argument, reread the briefs and crucial parts of the record. Shepardize your main case law authority, and that of the opposition, to see if any new cases on the issue have been published since the briefing. Check any very recent authority in the cumulative subsequent history table or the appellate courts’ website, to see if review has been granted or depublication ordered.

If you should find any new authority or determine that a case has been depublished, it is your duty to notify the Court of Appeal in advance of the date set for oral argument. Counsel should submit a concise letter to the court which cites the authority in question and which briefly explains its relevance to the issue or issues at hand. A copy of the letter should be served on opposing counsel.

After reimmersing yourself in the case, evaluate your issues. Which issues have the most potential for a favorable result for your client? Concentrate on those issues that have a realistic possibility of success. Streamline and reduce your argument to the minimum elements necessary to prevail. By doing this, you map the most direct route to success. You have an analytical framework which gives you coherence, direction, and logical progression.

While it is important to stress your strong points, it is vital that you prepare for difficult questions on your weak points. Figure out your weaknesses, and prepare a response for the most difficult questions you could formulate were you on the other side. Have an answer ready.

Having decided which issues you are going to address, and having outlined the essential elements of each argument, do a practice run. In translating your notes and thoughts to a smooth verbal presentation, you will find that there are rough spots which need work. Time yourself, so you can give the court a reasonably accurate estimate of the length of your argument. Although the rules allow you up to 30 minutes of oral argument (Cal. Rules of Ct., rule 8.256(c)(2)), the court will become restless if your comments are redundant or unfocused.

As you begin your oral argument in court, tell the court what issues you intend to discuss, and in what order. Introduce each argument with whatever color or verve can be mustered. Seize on an unusual fact pattern that will distinguish your case from the others on the court's calendar. Present your streamlined version of the argument.

Despite the fact that you have prepared a beautiful monologue argument, do not hesitate to leave it in response to questioning from the bench. Through the questioning you are gaining valuable information about what is significant to the judge, the decision maker. Go directly to the area of the judge's concern.

Do not be afraid to tactfully and respectfully take issue with a judge's version of the facts or reasoning, if that version is in error. Many times the judge will make a factual assumption or throw out a line of reasoning that is dangerous to your position. To respond properly in these situations, you should be armed with a record citation or contrary case authority. Do not be deferential toward a misreading of the facts or erroneous legal reasoning. It is your last chance, short of a petition for rehearing, to show the court any factual or legal errors in its approach to the case.

Listen carefully to your opponent's argument and the questions directed to your opponent. Again, a little extrapolation from the judge's questions will generally tell you the tentative thinking of the court. If the court gave your opponent a hard time on a particular point, see if you can press the point home even further in rebuttal.