For many years, I sat as an appellate judge in state court, listening to oral arguments, questioning counsel about the record and case authorities, and testing my conclusions about the appeal. For the last eight years, I have stood on the other side of the bench, attempting to answer the judges’ questions, trying to decipher the purpose of the questions and, perhaps, persuading the judges to change their minds.
Both of these perspectives have made it clear to me that while oral argument is stressful and time consuming, it is a chance to have a conversation with the judges deciding your case, to present your arguments in a new way that the judges may find persuasive when previous iterations may have been unsuccessful, to answer any questions the judges may have, to clear up any misperceptions of the record or the law, to persuade one or more judges in a split panel to move in your direction, and to convince judges who appear to be against your position to change their minds.