Although the Omicron variant has slowed down a return to the normalcy of oral argument at the state Appellate Division Departments, the prevailing view is that with the waning of COVID over the next month or so, we may soon be on the cusp of a return to appellate argument as we remember it. So, we believe that it is not too early for a refresher course on best oral argument techniques to assist the practitioner who has gotten used to the more laid-back practice of argument-by-Zoom.
First, as former members of the Appellate Division, First Department, we can unequivocally state that oral argument is important—especially in close cases. There is an old lawyers’ adage that you cannot win a case on oral argument—only lose it. We believe that you can both win or lose a case as a result of oral argument. Both of us remember numerous appeals where the outcome was uncertain as we took the bench after pouring back and forth over the briefs and record, in advance of the argument.
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