Criminal Appeals and Oral Argument: A Few Observations

A few days ago, I had an oral argument before the Eleventh Circuit Court of Appeals, in Atlanta, Georgia.  As a former federal prosecutor, here in Augusta, I often had to handle appeals of guilty verdicts in trials which I had handled.  (I was very fortunate that I lost only one case in over 20 years as an AUSA). 

Now, as an Augusta criminal defense attorney, I sometimes still must appeal, either a verdict or a sentence.  But no matter which side I have been on -- as a federal prosecutor, or as an Augusta criminal defense lawyer -- the experience of handling an oral argument has been quite similar.  Here are a couple of observations about oral argument which you probably won't find in a law book anywhere!

1.  THE TIME FLIES BY DURING ORAL ARGUMENT:  Generally, each side is allotted fifteen minutes to argue their respective sides of the case. In my recent case, since I represented the appellant, I got to go first and last, so I chose to argue ten minutes in my first argument and reserved five minutes for rebuttal.  There is a time clock in front of the lecturn which shows how much time you have left. Once the judges started peppering me with questions, I was again amazed at how fast the time whizzed by!

2. LAWYERS SHOULD CAREFULLY RESPOND TO JUDGES' QUESTIONS:  Another thing I have learned is that lawyers should focus on, and respond to, the judges' questions.  In other words, you must be willing to discard any planned argument and simply answer their questions.  After all, it is what the judges think is important that matters and not what you may think that matters!

3.  LAWYERS SHOULD RELAX AND ENJOY THE EXPERIENCE:  Finally, I recommend that attorneys should try to enjoy the experience of arguing before an appellate court.  Look, I realize that it can be a grueling experience to prepare for oral argument and to attend court out of town. And it is never fun to get grilled by judges while a time clock is ticking!  But, on the other hand, doing an oral argument, for attorneys, is sort of like playing in the Super Bowl for football players.  

This is why I went to law school and why I enjoy being a criminal lawyer -- the supreme challenge of having my client's fate in my hands while I try to use my skills and experience as an advocate to protect his rights -- and that is what practicing law should be all about!  In other words, the stakes are high, but you can make a difference, so you should relax and enjoy it!  

Also, getting to go to Atlanta for an oral argument also means staying at a nice hotel and eating at fancy restaurants, (like Durango's and the Blue Willow Inn) -- and that part of practicing law can be fun, too!