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All appellate arguments have predesignated time limits. Some basic principles will help the advocate make the most of the period available.

  • If you represent the appellant, always request rebuttal time. This is one of the very few tactical rules in litigation that have no exceptions. You do not know what opposing counsel will say, so it is invariably foolish to waive in advance your opportunity to respond to it. Indeed, if you do not reserve rebuttal time, opposing counsel may take liberties with the law or the record because you will not be able to correct her. I recommend reserving 20% of your total allocation of time for rebuttal.

  • If you anticipate a hot bench (in other words, judges who know the case and ask many questions), your prepared presentation should not exceed half of the time allotted for it once you subtract rebuttal time.

  • If a judge interrupts you with a question, stop talking immediately. Judges always have the conversational right of way.

  • If a judge asks a question, answer it immediately. It is considered very rude to say you will answer the question later.

  • When time runs out, you do not have to stop speaking in mid-syllable. The court will allow you to complete your thought, and you do not have to ask permission.

  • If you are responding to a judge’s question when time runs out, keep going. If the judge asked a question, the judge wants an answer. Do not ask if you may complete your response; just do it.

  • Exactly one lawyer should argue for each side. Splitting an argument is awkward for many reasons. The first lawyer may use too much time, minimizing the time remaining for his colleague. The judges may ask the first lawyer a question about the second lawyer’s issue, requiring a deferral of the response. Even worse, the judges may ask the second lawyer a question about the first lawyer’s issue, requiring her to say they should have asked her colleague while they had the chance.

  • You do not have to use all your time.

  • If you have spent most of your time responding to questions from the bench, the presiding justice may invite you when time runs out to speak for an additional minute without interruption. This is a fabulous opportunity, but it leaves many lawyers surprised and flustered. In anticipation of this possibility, the advocate should prepare a succinct and compelling one-minute statement summarizing the heart of the case, and be ready to modify it on the spot to address whatever concerns the judges have expressed.

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