Knowing one's audience is the cardinal rule of oral advocacy. Although the fundamentals—preparation, simplicity, candor, responsiveness—apply in any forum, effective oral advocacy requires that lawyers be mindful of the differences between trial and appellate courts, in particular when presenting argument. Understanding and accounting for those differences can help to sharpen the effectiveness of oral argument and ensure that it is truly useful to the court in deciding the case before it.
This article focuses on three particularly important differences between trial and appellate courts and offers practical advice for appreciating and accommodating those differences when preparing for and delivering oral argument: the different roles played by trial and appellate courts in our system of justice; the various time constraints under which trial and appellate courts typically operate; and the contrasting composition of trial and appellate courts, i.e., the single trial-court judge versus the multiple judges on an appellate panel.
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