In April 2017, the Appeals Court launched an oral argument pilot program that staggers attorney appearance times. This means that the “old days” of arriving at oral argument before 9:30 a.m. and waiting through a series of arguments before your case is called may soon be history. The pilot program organizes the oral arguments in three groups based on the order the cases are listed on the Court’s argument calendar. Parties for the first three cases must appear by 9:30 a.m., parties for the fourth and fifth cases must appear by 10:30 a.m. and parties for the final case(s) must appear by 11:00 a.m.
The pilot program includes most cases that are scheduled for argument at the Appeals Court from April through June. All cases included in the pilot program will receive notice of the staggered appearances. In the event you have an upcoming argument at the Appeals Court, and are unsure of whether you received such notice, each case included in the program has an Appeals Court docket entry stating, “Scheduling Update and Notice of Oral Argument Pilot Program sent.”
The oral argument pilot program is just one of the many recent Appeals Court initiatives aimed at making Massachusetts appellate practice more efficient. This program may streamline the oral argument process, saving both attorney time and client money. However, because the program will almost certainly curtail the extent to which attorneys are “forced” to watch their colleagues argue, this time consuming but valuable opportunity to observe and learn from other practitioners may no longer be easily accessible for busy attorneys.
For new appellate attorneys the opportunity to observe more experienced practitioners argue – the good, the bad, and the ugly – can serve as a crash course in seeing what works and what doesn’t before your turn at the podium. Even if you are ruminating over your case or silently rehearsing your best zinger during the other arguments, you nevertheless learn from the style and substance of other practitioners’ arguments by osmosis. Seasoned appellate attorneys have just as much to gain from watching others argue, including incorporating stylistic refinements into your oral argument repertoire. While practitioners are, of course, free to visit the Appeals Court and watch argument, the reality is that most attorneys do not have the luxury of observing hours of appellate argument unless they are already there waiting for their case to be called.
Beyond learning from other practitioners, watching earlier arguments provides a helpful opportunity to get a sense of the three-justice panel before your case is called. Is it a hot bench? What type of questions are they asking? What areas are they focusing on? Getting a feel for the justices on the day of argument is crucial because it is almost impossible for anyone other than Appeals Court frequent-fliers to argue before all, or almost all, of the twenty-five member court. This is particularly true given the recent wave of retirements and the influx of new justices (seven justices have been appointed since 2015 and more are on the way). Now even the most experienced Appeals Court practitioners will soon be arguing before unfamiliar justices.