Ok, so in my experiences of 11 years in Dallas and almost 6 years here, State's attorneys have usually used the following on the cover of their briefs: "The State requests oral argument, but only if Appellant is requesting argument." Or something equivalent. Do appellate prosecutors elsewhere do this? What are you doing for efiling where you are required to choose either a brief requesting argument or a brief not requesting argument?

I have done this, and I waive when they do. I'm generally have a low opinion of the utility of oral argument that I generally try to discourage the court from granting it, unless it's one of those rare circumstances I feel argument may be helpful to the court. Have not had to deal with efiling yet, but I believe that day is fast approaching?

Wait, I'm only a few years behind you. I'm such a lazy slack-ass. I'd better get on the ball.

"The State requests oral argument only if the Court, in its discretion, does not advance this case without oral argument. See Tex. R. App. P. 39.1; State's brief, p. 2."

I also follow Justice Kerry Fitzgerald's advice: I explain on page 2 why these issues aren't worth OA. (short record, well-settled law, unpreserved, etc.)

In 99% of cases, OA is a huge waste of time.

The contact between judges and lawyers is important. While the actual argument might not change many minds, the social contact does help to encourage a professional attitude.

I enjoy oral argument. That probably means I'm not very good. I admit that it is probably not important in the majority of cases, but I have seen it change the outcome. And I don't mean that I lost a case because of my argument, either.

This message has been edited. Last edited by: JohnR,

I would think that would indicate the opposite is true. I'm not saying I don't think it can be beneficial. I just think those instances are the exception rather than the rule.

This discussion in this thread has been confined to oral argument in the intermediate courts. But the procedures and even, perhaps, the need and purpose of oral argument in the CCA is rather different.

In close cases at either level,I would rather have had a shot at oral argument. I recall one argument where, after hearing the defense, a justice honestly believed the facts were something else until I corrected the misapprehension right out of the hatch. I had the pleasure of seeing the eyes light up, the face relax, and the attitude change. I was ready for a ruling from the bench! Okay, so most likely the justice would have figured it out later, but I like to think it provided some perspective on the advocates' credibility for future cases and swiftly got this one out the way.

In any event, oral argument is heard in so few cases I usually enjoyed getting out to present my arguments another way. Although I know it could happen, I don't think I ever lost an appeal because of oral argument.

There are elements to a face-to-face encounter that don't make it across on paper or on the phone. I believe they can make a difference, if not immediately, then in the long term.

This message has been edited. Last edited by: John A. Stride,

This thread has morphed from the original question: what do you put on your brief cover regarding oral argument, and have you changed it due to efiling?

All of my covers say we waive.
I've yet to have a brief where I thought arguments would significantly aid or change the outcome.
I have also never been told by a CoA at oral arguments to sit down because I waived.

I put on the brief and select on the e-filing provider that we are waiving argument. The fourth court of appeals doesn't address changing your mind if the other party requests argument in its local rules or IOPs, but the fifth court of appeals says in their IOPs that if you waive argument and then argument is granted based on the other party's request, you just file a request to argue. They seem to imply such a request will automatically be granted.

I'm not aware of any intermediate court that would refuse a State's request to argue if (1) oral argument is granted at the appellant's request and (2) the State originally said it waived argument. This is especially true in the smaller courts (Tyler, Texarkana, Amarillo, El Paso).

Amarillo did that to me once -- no big deal, the case was meritless.

The Fort Worth court requires the State to argue if the defense is granted argument.