November 28, 2018 Articles

Splitting Oral Argument: Avoiding Misadventures in Division

The admonition against dividing argument is almost universal.

By Eric Caugh

A few months back, an appellate lawyer shared on Twitter that he was listening to the audio recording of oral argument where four appellants divided 30 minutes of argument amongst them. In the ensuing discussion, most responses ranged from mild criticism to outright shock and dismay. But the entire discussion got me thinking about why most judges and commentators advise against dividing oral argument and under what circumstances splitting an argument might be acceptable.

Consensus Against Splits

The admonition against dividing argument is almost universal. Courts routinely advise against it:

  • Only “one counsel may argue for each party unless the court orders otherwise.” Second Cir. R. 34.1.
  • The “court may—in exceptional circumstances—permit divided arguments.” Sixth Cir. R. 34(g)(2).
  • “Divided arguments on behalf of a single party or multiple parties with the same interests are not favored by the court.” Seventh Cir. R. 34(c).
  • The Eighth Circuit “discourages” dividing argument time. Eighth Cir. IOP, III.K.5.

So, too, practitioners and commentators:

  • “[A]s a general rule, counsel should not divide argument.” Steven D. Merryday, Oral Argument § 23.11, in Florida Appellate Practice (10th ed. 2017).
  • “Avoid splitting the argument between cocounsel.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 148 (Thomson West 2008).

Perhaps the strongest admonition against dividing oral argument came from Chief Justice Walter V. Schaefer of the Illinois Supreme Court when he addressed the annual convention of the Tennessee Bar Association in 1954. He said, “Don’t do it! Far better to suffer the pains of the silent advocate and the wear and tear on the seat of your pants while you are sitting there as he butchers your case. Much better than to divide your time.” Schaefer, Appellate Advocacy, 23 Tenn. L. Rev. 471, 473 (1954).

But why? Why should attorneys risk “suffer[ing] the pains of the silent advocate” while watching as another lawyer “butchers your case” at oral argument? Answering this question guides the determination of when it may be acceptable to split argument and how to best go about handling the division.

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