Oral argument doesn't often matter, but when it does, it really does matter a lot. Some judges really do go into argument at or close to equipoise. Some go in unprepared. In some of the busier circuits (though I don't believe in the 2d), a bench memo is prepared by only one of the clerks for for the entire panel. So, Judge A's clerk will write a bench memo that distributed not just to Judge A, but also Judges B and C. (This is the practice at the 9th Circuit, where it's too busy for every chambers to write a memo for every case, although some of the judges make their clerks write supplements to the bench memo.) If a judge does you the favor of telling you in his questions why he's not buying your argument, which they don't always do, this is where you're most likely to have an impact -- if you can shake what he thinks he knows to the point where he's willing to go back and take another look, then you have a chance to turn the thing around. It's much less common that this happens with respect to the law, because once a judge (or his clerk) has an opinion about what a case means or whether it applies, it's hard to shake. The only way you can really get a judge off something like that is to maybe make a point about the case that matters and is sort of hidden. If you can get a judge to go back and re-read a case, you've accomplished something. It may not mean that oral argument will necessarily turn a loss into a win, but it would be wrong to say it doesn't matter. It does happen most with the record -- if the judge has an incorrect understanding of the record, or thinks something is in there that isn't (or vice versa), this is where you can make some headway.
The other thing that seems to happen a lot at oral argument is that a particular judge might go in predisposed to rule for one side, but with a few things that she needs to have shored up in order to be comfortable. If you're on the side where this judge is leaning, oral argument really does matter -- you need to try to recognize what those points are and give the assurance the judge is looking for (again often about the record) while playing some defense by trying to rebut what your opponent has said (or, harder, what you expect your opponent is likely to say) about why the judge has it wrong. If you mis-perceive what the judge is doing -- if she's trying to help you but needs you to meet her halfway and you treat her as hostile, you could fuck up your whole case. If you're on the losing side, you have an uphill battle, but you have to hope that the judge gives you a fighting chance by accurately explaining her concerns so that you at least can try to take them on.
This is one of the reasons that, while the prospect of gathering judge intelligence is often bullshit, it does help to know your judge sometimes. It's a very small sample size, but if I were ever to appear before Berman, based on this case, I would be inclined to conclude that he asks honest questions and tells me exactly what my problems are. If I'm on the side that is losing, this is my very favorite kind of judge, because he gives me a puncher's chance. Because he was so adamant about trying to get a settlement in this case, when the reports came in about oral argument, there were a lot of attempts to figure out what it meant -- was he asking hard questions of the NFL because they were dragging their heels in settlement and he wanted to try to convince them to play? As it turns out, no. When you read his opinion, and look back on oral argument, it's very clear that the questions he was asking were a straightforward and honest attempt to get the NFL to try to convince him he was wrong. They didn't even try. But, very long winded way of saying that when you have a judge like that, oral argument really can matter.
