August 23, 2010

Oral argument in the California Supreme Court: reserving time for rebuttal

An occasional tactic by an appellant’s attorney is to reserve all his or her time for the rebuttal argument, making no opening argument at all. The supposed intent is to prevent the respondent’s counsel from knowing exactly what to focus on, and then having all one’s time to get in the last word. A savvy response by the respondent’s attorney is to stand up and say, “Because my opponent has given me nothing to respond to, I’ll submit on the briefs.” That approach should foreclose any rebuttal argument, depriving the appellant, who bears the burden of showing why reversal is required, of any argument time at all.

During my first argument in the California Supreme Court, my opponent—who was representing the petitioner—tried a variation of this same tactic. After settling himself at the lectern, he announced, “I’d like to reserve all but five minutes of my time for rebuttal.” Chief Justice George’s eyebrows shot up, but he responded with something neutral like, “Very well, Mr. X.” Five minutes into his argument, when my opponent was being bombarded with questions from the justices, Chief Justice George interrupted and said, “Mr. X, your five minutes are up. We’d be pleased to have you continue answering our questions, but if you would still like to reserve the remainder of your time for rebuttal, you may sit down now.” Somewhat sheepishly, my opponent said, “I think I’ll continue my argument, your Honor.” Luckily, I wasn’t forced to decide whether to submit on my briefs, and ended up winning the case with a 7-0 decision.

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