CBA Record April-May 2019

It was not that long ago that oral arguments in the Illinois Appellate Court were headed down the same path as published opinions–the exception rather than the rule. There was a concern among appellate practitioners that oral argument was becoming a dying art, and among younger appellate lawyers the opportunities to orally argue their appeal were becoming fewer and fewer. Recognizing these trends, our Illinois Supreme Court strongly encouraged the ap- pellate court to hold more arguments, eventually culminating in a new supreme court rule setting a presumption in favor of oral argument when the parties have requested it. The rule is starting to have an effect. According to statistics from the Administrative Office of the Illinois Courts, oral arguments have increased signifi- cantly in the Appellate Court since the rulewas enacted. Eventually, I assume that in cases where the parties are represented by counsel and have requested argu- ment, an oral argument will become the norm like in the Seventh Circuit Court of Appeals and the Illinois Supreme Court.

W HAT DOES THIS MEAN? IN TALKING TO appellate court justices prior to the enactment of the rule, many observed that oral arguments were gener- ally unhelpful because lawyers tended to be unprepared or would simply recite from the briefs. With the increase in oral arguments, it will be up to us to make that experience more meaningful. Here are a few observations and pointers to help make that happen. Briefs Are Key It may seem counter-intuitive in an article about oral arguments to stress at the outset how important the written brief is in the appeal. Even with an oral argument, the brief is where the review- ing court will focus, and it is where your appeal will be won or lost. The written arguments and supporting authorities will almost always carry the day. Oral arguments can make a difference in some appeals, but the written brief is the key to success. In those instances where the arguments and authorities present a close call, an effective oral argument may tip the balance in the decision-making process. But even if it is only determinative in a few cases, you owe it to your client to do your best.

Being Well Prepared Is Also Key Immediately after writing your brief, you probably know the record, the issues, and the authorities as well as you ever will know them. But the oral argument may be several months after the briefing closed, so you will need to refresh your memory of both the facts and the legal issues in the case. Do not take this process lightly. In preparing for the oral argument, the reviewing court will be current on the content of your brief, so you must be also if you want to be persuasive. This means you must know the procedural history of the case, the issues, the significant cases that both sides rely upon, and exactly what relief you are seeking. Without a thorough understanding of those elements of your case, you will be wasting both your time and the court’s time at the argument. Oral arguments in an appeal can be very satisfying and give you the opportunity to address questions on issues that reviewing courts want answered. Oral arguments can make a difference if you are prepared. If you really believe in your appeal, you should never waive the chance to address your position before the court.

J. Timothy Eaton has a distinguished career in commercial and appellate litigation, as well as arbitration, and has been involved in a number of high-profile cases. He was CBA President in 2013-14.

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