Former Chief Justice Tani Cantil-Sakauye recently spoke at a bar association program. (See here.) Her wide-ranging talk included tips for Supreme Court practitioners. One of her primary points was not to cede part of your oral argument time.
Splitting one side’s 30 minutes of argument time is allowed. Rule 8.524(f) provides for “[r]equests to divide oral argument among multiple counsel,” but the division has limits: “Multiple counsel must not divide their argument into segments of less than 10 minutes per person, except that one counsel for the opening side — or more, if authorized by the Chief Justice on request — may reserve any portion of that counsel’s time for rebuttal.”
However, just because you can split your time doesn’t mean you should. And Cantil-Sakauye’s advice is clear — don’t. (Video here.)
“My biggest rule is: please do not split time,” the former Chief Justice said. She explained that “the justices don’t ask questions in a lineal fashion” and you can’t be certain “when [particular questions] will come.” The court “is not going to categorize its questions according to how you would like to present [the argument]” and “it’s very confusing and a waste of time” when one attorney is in court to talk only about a particular issue but all that the justices want to hear about is a different issue. “I’ve never seen it be successful,” she concluded about the tactic of dividing time.
Years ago, we advised, “splitting an argument is often a mistake because it dilutes the parties’ ability to answer the Court’s questions meaningfully and the justices don’t particularly like it.”
[March 14 update: Don’t split your oral argument time — a caveat.]
