August 4, 2010

Oral argument time: To split or not to split?

The California Supreme Court gives each side 30 minutes to present oral argument regardless of the number of parties on that side, allows the parties to request to divide oral argument among multiple counsel, and generally forbids argument segments of less than ten minutes per advocate. (Cal. Rules of Court, rule 8.524(e) and (f).)

This raises the question whether multiple parties on one side of a case should divide their oral argument time between them, or simply designate one advocate to argue on behalf of all. We are of the opinion that splitting an argument is often a mistake because it dilutes the parties’ ability to answer the Court’s questions meaningfully and the justices don’t particularly like it. Case in point: in one recent argument, the parties on one side split their argument time three ways and court observers reported it was not effective; even though their experienced appellate counsel tried hard to be coordinated, the argument came across as disjointed. So a good general rule is to avoid splitting argument time. That said, in some cases it may be worth it to allocate ten minutes to counsel for amici to allow them to address a case’s broader policy implications.

Of more arcane interest, perhaps, is what happens if the parties cannot agree who will argue for their side. One option is that the Court could basically tell them, “We’re not your mother—you figure out which ONE person is going to show up or you will forfeit oral argument.” (This is the approach taken by the U.S. Supreme Court in Carciere v. Kempthorne in 2008, as reported here and here.) Alternatively, the Court might order the argument split into two or more equal segments, reasoning that the parties will have to be stuck with an ineffective argument plan if they can’t get their act together.

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