"May it please the Co--" (Or, making the most of limited argument time).

By Kirsten Small

I ran across an interesting article by Tony Mauro of the National Law Journal. Mr. Mauro notes that while Chief Justice Rehnquist was a stickler for keeping attorneys to their alloted argument time, Chief Justice Roberts is more flexible, allowing lawyers to finish their thought and event allowing additional time when necessary.

Does this mean the Chief has turned the henhouse over to the foxes? Hardly. While my experience has been that there is often a vast difference between the amount of time an appellate lawyer thinks he needs to argue his case, and the amount of time that he actually needs, it is also true that quite often, the time alloted (30 minutes per side in the Supreme Court, 20 minutes per side in the Fourth Circuit, with some exceptions) is insufficient for counsel to address all of the issues on his agenda and to respond to issues from the court. When this happens,the presiding judge must decide whether to allow additional argument time.

Appellate advocates should take this into account when preparing for oral argument. Triage your arguments--or have a disinterested colleague do it for you--and focus only on those that (a) have the best chance of prevailing, and/or (b) are likely to need explaining beyond what is already in your brief. Bear in mind that you do not need to argue a point just because it is in your brief--indeed, more than one lawyer has snatched defeat from the jaws of victory by failing to leave well enough alone.

Accommodating the time limitations of appellate argument requires an agility that comes from knowing your case and the law inside out. If the court grills you on issue C, such that you are short on time for issues A and B, you are going to need to jettison one or the other, or truncate both, on the fly. Having a plan in mind before you step to the podium will make this an easier decision. Plus, the court's questions may indicate to you a particular area of concern that needs to be addressed, and you should be sufficiently knowledgeable and flexible to do so.

Machiavelli* once wrote, "I am writing you a long letter because I do not have the time to write you a short one." So it is with oral argument--the ability to be brief requires intense, time consuming preparation. The best advocates recognize the value of this investment of time.

*Actually, I have seen this statement attributed to numerous people. Since I first heard it attributed to Machiavelli, that's what I'm going with here.