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The Dangers of Divided Argument

Caleb Raymond Gerbitz

The Dangers of Divided Argument
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On occasion, appellate advocates find themselves on a case with multiple sets of attorneys, often representing multiple clients. Naturally, each attorney wants the opportunity to advocate for their client at oral argument. And many appellate courts are happy to acquiesce to such an arrangement by dividing argument among the various attorneys on one side of the “v.” To many appellate advocates and their clients, this seems like a fair and reasonable compromise.

I urge caution before agreeing to divided argument.

To be sure, divided argument has its place. For example, if two parties are aligned in the caption but have interests that diverge in some respect, it makes sense that each attorney address the court directly on those issues. Alternatively, two aligned parties will sometimes bring especially unique perspectives, both of which would be valuable for the court to hear firsthand. In those cases, divided argument may be appropriate.

Often, however, the rationale for divided argument is less compelling. For example, divided argument is often employed to “share the load,” divvying up the issues to the various advocates. This rationale sounds good in theory, but in practice, it often produces disjointed oral arguments. When the judges or justices start asking questions, they may not know (or care) which attorney is supposed to address which issue. Or, if it turns out that an issue assigned to one of the attorneys is the issue that the court is most interested in, divided argument limits the time available to fully explore that issue.

Another rationale for divided argument is to give everyone the opportunity to argue. In my view, this is a poor rationale for divided argument. Changing advocates during the middle of an argument comes with the significant cost of disrupting the flow of the argument. The benefit gained by dividing argument must be significant enough to justify that disruption. Equal distribution of oral argument opportunities is not a sufficient rationale for divided argument.

Of course, the big hurdle to implementing my advice is that one attorney (and their client) must agree to forgo the right to argue. That decision requires both careful consideration of your client’s interests and an incredible degree of humility. Ask yourself: Would my client be better served by one attorney arguing uninterrupted for the full time allotted—even if that attorney is not me—or does some other rationale outweigh the drawbacks of divided argument?

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