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Appellate attorneys must be prepared to answer the one question that clients will inevitably ask, “Will we get oral argument?” The short answer is, “Maybe, if you ask nicely.”
In most instances, both parties to an appeal have significant reasons to seek oral argument. For the appellant, even the most minimally involved client will have lived through a loss in the district court, as well as the arduous process of drafting two complex appellate briefs. The appellant will be eager for the opportunity to have their story persuasively communicated to a distinguished panel of appellate judges. Former Minnesota Supreme Court Justice John Simonett was once asked if the appellant should ever waive oral argument. After reflecting on the question for a moment, he responded, “It’s a lot like proposing marriage—I suppose you could do it just in writing.”
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