Oral Argument

1. Make a Proper Request

The Second District Court of Appeal has historically extended oral argument to most litigants who have made a proper request for it. Because the scheduling of oral argument is a function of the clerk's office, it is important to make any request for oral argument in a separate filing "not later than 15 days" after the last brief or reply is due to be served. Fla. R. App. P. 9.320.

If an attorney who will present oral argument has not been listed previously on a brief, petition, response, or reply, please inform the court as soon as possible by filing a notice of appearance.

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2. Best Practices in Oral Argument.

Oral argument affords counsel and pro se litigants an opportunity to directly interface with the three-judge panel assigned to their appeal. Our court generally allows twenty minutes of time to each side for oral argument in an appeal. Ideally, oral argument will be somewhat akin to a question-and-answer session. Thus, the allotted time should not be used to make a speech but to address the panel's questions or issues.

With that in mind, we would offer these general observations about how counsel and pro se litigants can maximize their oral argument opportunity: (a) always introduce yourself and who you represent (for example: "May it please the court. My name is , and I represent the _."); (b) if you are the appellant/petitioner, indicate whether you wish to reserve any rebuttal argument time (no more than five minutes); (c) if multiple parties will be arguing for a side, indicate how you would like to divide the time before proceeding into argument; (d) have an outline of your key points, as well as transition points, prepared in some form; (e) speak slowly and clearly, at a proper volume; (f) always answer a judge's question forthrightly, candidly, and completely; (g) try not to delay answering a question; (h) never interrupt the judge who is asking the question; (i) try to avoid simply reading notes or prepared remarks in response to a question; (j) do not ask a panel judge a question unless it is for clarification; (k) always be conscious of your remaining time.

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3. Know the Case, the Briefs, and the Law.

Because any issue that has been raised in the briefs might be the subject of a concern or question from the panel, it is imperative for counsel to thoroughly know the case, the record, and the procedural development of the underlying litigation. Equally important, anyone presenting oral argument should have a thorough mastery and recollection of all of the arguments contained in the briefs. Finally, counsel should be thoroughly familiar with and prepared to discuss any aspect of the cases and legal authorities that were cited in the briefs.

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4. Be Mindful of the Audience

An appeal is assigned to a three-judge panel who will be referencing a written record and briefs. Thus, oral argument before an appellate panel is categorically different from closing argument before a jury: dramatically raising or lowering voice volume, facial gestures, pausing for effect, waving a "key" piece of evidence, thumping the podium, and the like are often more irritating than persuasive.

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5. Practice Beforehand.

It is always a good idea to practice oral argument with a colleague prior to appearing before the court. This can help sharpen counsel's responses to likely questions, as well as help to identify questions that might be raised during oral argument. Using a timer or a clock to track the allotted time constraints can also be a useful part of this exercise.

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6. Be Professional.

Never make personal attacks on the trial judge, the lawyers, the parties, or the witnesses, whether directly, indirectly, or sarcastically, during oral argument. While opposing counsel or an opposing party is presenting argument, remain dignified and avoid making any facial gesture, heaving a sigh, shaking the head, and the like, all of which are distracting and unprofessional. Attorneys should counsel their clients about appropriate courtroom behavior if they anticipate a client's attending oral argument.

There is almost never any reason to interrupt or object when the other side is presenting their argument. Ordinarily, the judges assigned to your panel will readily recognize arguments that are outside of the record or otherwise improper.In the rare instance where a demonstrative aid will be utilized during oral argument, counsel should, prior to the date of oral argument, notify opposing counsel to disclose the demonstrative aid and contact the court marshal's office.

Finally, be extremely sparing with attempts at humor during oral argument; more often than not, it will be inappropriate given the seriousness of legal proceedings in general.

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7. Be Brief (if you can).

Similar to the page limits of written briefs, it is not necessary to utilize every minute of allotted time in oral argument. If you have adequately touched upon the points needed to be considered and fully answered all of the panel's questions, it is perfectly acceptable to inquire if there are any further questions and conclude oral argument.

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8. Be Mindful of Panel's Job.

Recognize that the judges fully prepare for oral argument and are open to thoroughly considered arguments that are supported by the record and the law. Do not assume that a question necessarily reflects a judge's final conclusion as to the case. Listen to questions and respond as directly as you can. The judges want to make a correct legal decision, and their questions are intended to help them achieve that goal.

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