Has the Second Circuit allocated argument time yet? I just put 15 or 20 minutes in as an example, but we may not yet know how long the argument will be. Usually, you get told when the argument is calendared. I will defer to the Second Circuit practitioners, but my understanding is that the Second Circuit is among the most restrictive in the country with respect to oral argument time -- both in setting time and in holding you to it. In the Ninth Circuit, which is what I'm most familiar with, the arguments are set by complexity -- a staff attorney looks at the briefs and decides what weight to give the case and that determines both panel assignment (to make sure that there is a roughly fair distribution of complex cases) and also time for argument. Most civil cases get 15 minute per side, with ones deemed relatively straightforward getting 10 minutes per side. Very complicated appeals get 20 minutes, but that's rare. The Second Circuit has even shorter arguments than that. I think they do 10 minute arguments even -- so only 5 minutes per side. The default seems to be 10 minutes per side, with occasional 12 minute arguments for more complicated civil cases. I think 15 is long for the Second Circuit. For example, on next week's argument calendar, there is a big labor law dispute involving American Airlines flight attendants, which has been given 15 minutes per side. As far as I can tell, for the entire calendar next week, there are fewer than 5 cases getting 15 minutes and only one getting 20.
So we're probably looking at something like: Appellant 10, Appellee 12, Appellant 2. Or Appellant 12, Appellee 15, Appellant 3. Also, it's worth noting that the Appellant counsel is generally responsible for apportioning his or her own time. So, if you're given 15 minutes, you usually begin by announcing how many you'll try to leave for your rebuttal -- say you ask for 4 minutes. But there are no guarantees. If you hit the 11 minute mark and you're still getting questions, your time for rebuttal is ticking down, or you decide to try to make one last point -- that eats into your rebuttal time. And so you have to make a judgment on the fly whether you want to give long answers and potentially leave yourself with no rebuttal time or try to answer quickly to save some time for rebuttal. And if they keep asking questions, there's nothing you can do about it while you watch your rebuttal time disappear. Where I practice, if you use up all your time in your opening argument so that there is no rebuttal time left, the presiding judge will almost always give you one minute for rebuttal if he or she thinks you were responsive and it was questioning that made you go over. But not always. When he was Chief Judge, Rehnquist would cut lawyers off as soon as their 30 minutes were up, even in mid-sentence and even if they were answering a colleague's questions. As a result, some older judges in particular adopt the same model, or possibly give you one more sentence to answer a question, but that's it. Again, my understanding is that this is more common in the Second Circuit than elsewhere, but it depends on the judge and again I would defer to the Second Circuit practitioners.
Long winded way of saying that appellate oral arguments are probably very different from what you might anticipate based on the wide ranging hearings that were held before Berman. You have three judges, and they ask questions, and the questions take time. There is no big wind up or statement of the facts -- and in fact sometimes you don't get to say more than a half sentence before you get your first question. You want questions. If the panel is against you, you want to know specifically why so you can try to talk them out of it. If they're on your side, you want to know their reservations, so you can explain why their instincts are right and why they shouldn't worry about it. And your answers have to be honed down, because you might only get out a couple of sentences before another judge asks you a question. In a typical argument with an engaged panel, you maybe will get to talk 60 percent of the time, and they will take up the other 40 percent. When I prepare for a 10 minute argument, my assumption is I will get to make one and maybe one half (or abbreviated) point affirmatively and will get about 5 questions. If it turns out more, great. For a 15 minute argument, I prepare my best two points and figure out ways to work them into answer to questions if I can figure out a good transition, and have a third point ready to go. It's different preparing to be the Appellee (Kessler here), and there's a premium on flexibility. The advantage you have is that you just heard 10 or maybe 15 minutes from the panel in asking questions to your opponent, so you have a little time to try to tailor your argument accordingly.
Of course, if you show up and it becomes clear that all they want to talk about is evident partiality, you throw it all out the window, and hopefully you're prepared. You prepare for oral argument so that you're able to talk about a dozen things, to answer two dozen anticipated questions, and with as many pithy transitions as you can muster to move the panel from what you expect are the questions you'll get asked back toward your themes. And then you look at your preparation materials after the fact and see you only got to 10 percent of it.
