X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
John W. Davis was one of the 20th century’s most accomplished oral advocates. In addition to being a founder of the venerable Wall Street firm Davis Polk & Wardwell (as well as an ambassador and presidential candidate), Davis argued more cases before the U.S. Supreme Court than any lawyer of his day. In 1940, he shared his insights into oral argument in a speech that remains an essential primer on appellate advocacy. Davis prefaced his remarks, however, by observing that it would be more instructive to hear from a judge about oral argument. “[S]upposing fishes had the gift of speech,” he posited, “who would listen to a fisherman’s weary discourse on fly-casting . . . if the fish himself could be induced to give his views on the most effective methods of approach.” John W. Davis, “The Argument of an Appeal,” 26 A.B.A. J. 895, 895 (1940). Since Davis’ speech, a number of judges have taken the bait, as it were, and lawyers angling for votes at oral argument would be wise to heed what they have said. Judges at all levels have offered advice on oral argument. Some of the most valuable come from Supreme Court justices who were accomplished oral advocates as well. Justice Robert Jackson, who served as solicitor general and was so effective that Justice Louis Brandeis recommended that he be named solicitor general for life, offered “some meditations by one of the fish.” Justices Thurgood Marshall and Ruth Bader Ginsburg, who argued many of the last century’s most important civil rights cases, are among the other big fish at One First Street N.E. to share their views on oral advocacy. Numerous state and lower federal court judges also have written about oral argument, including Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals, who has described how an advocate can endeavor to lose a case at oral argument. Alex Kozinski, “The Wrong Stuff,” 1992 BYU L. Rev. 325 (1992). Another federal judge, Ruggero Aldisert of the 3d Circuit, has written a treatise on appellate advocacy that includes extensive advice on oral argument and a survey of still more appellate judges on the subject. Ruggero J. Aldisert, Winning on Appeal (1992). Thus, since Davis called upon the fishes to speak, a whole school of judicial literature on oral advocacy has appeared. Although judges by no means agree on everything, there are some widely shared views-a sort of piscatorial perspective on oral argument. For example, judges frequently rail against counsel who merely repeat or, even worse, read their briefs at oral argument. In the early 19th century, appellate advocates such as Daniel Webster sometimes spent days in oral argument, recounting the facts in detail, reading statutes and cases and making each and every argument on appeal. Modern courts have no such patience. Indeed, the Supreme Court’s rules specifically admonish oral advocates to “emphasize and clarify the written arguments appearing in the briefs,” not simply repeat them. Sup. Ct. R. 28.1. Nor do judges want to hear speeches. According to most of them, oral argument should be a dialogue or, better yet, a conversation in which judges actively participate, not an oration in which they passively listen. Judges see the purpose of oral argument as helping them decide cases correctly, and they therefore use oral argument to do things such as clarifying the record. In most cases, judges are confident about their understanding of basic legal principles, but they recognize that counsel generally have a better grasp of the facts of a case. Thus, when the briefs and appendices submitted on appeal leave something unclear, judges attempt to clarify the facts during oral argument. It has been said that educating judges on the facts of the case is “the essential function of the appellate lawyer.” William O. Douglas, The Court Years, 1939 to 1975: The Autobiography of William O. Douglas, 180 (1980). Identifying key issues Judges also use oral argument to identify and confirm the key issues before them. Justice Antonin Scalia, for example, typically tells counsel his chief concern with their case and asks them to address those concerns. The purpose of these questions is not to put counsel on the spot, but rather to ensure that nothing has been missed. Although other judges may take a less intimidating approach, they similarly view oral argument as an opportunity to get to the nub of a case. Oral argument also can be used to test out ideas. Judges frequently ask lawyers hypothetical questions during oral argument to see how a particular rule or principle they are contemplating would apply in other situations. They often use questions to counsel to propose ideas to their colleagues or to answer questions posed by them (the so-called “softball”). In many appellate courts, judges do not meet prior to oral argument to discuss a case, and oral argument therefore is a judge’s first opportunity to exchange ideas with other panelists. Although meetings with other panelists or requests for supplemental briefing could serve these functions, most judges view oral argument as a reliable and efficient way of performing them. Even before Davis’ article appeared, Chief Justice Charles Evan Hughes had informed the bar that oral argument leads to “great savings of time of the court in the examination of extended records and briefs, to obtain the grasp of the case that is made possible by oral discussion and to be able more quickly to separate the wheat from the chaff.” Davis, supra, at 896. Others have been even more emphatic. Lord Edward Coke attributed almost mystical significance to oral argument. According to him, no judge “can attain unto a right decision . . . without solemn argument where I am persuaded Almighty God openeth and enlargeth the understanding of those desirous of justice and right.” Id. The late Chief Justice William H. Rehnquist was a bit more prosaic: He described oral argument as a catalyst that motivates judges to perform the in-depth analyses required for good decision-making. William H. Rehnquist, The Supreme Court, 241 (2001). Still others have noted that oral argument protects against the danger of “chambers think.” Aldisert, supra, at 303. Whatever the precise reason, the consensus is that oral argument is an essential component of sound judicial decision-making. In seeking to reel in votes at oral argument, advocates should keep in mind the goals and expectations of their judicial targets. Answering the questions Because judges use oral argument to clarify and confirm their understanding of a case, counsel must expect to be questioned during the proceedings. As Justice Byron R. White once observed, in oral argument judges “treat lawyers as a resource rather than as orators,” and they expect answers to their questions. Byron R. White, “The Work of the Supreme Court: A Nuts and Bolts Description,” N.Y. St. Bar J., Oct. 1982, at 383. In writing about oral argument, judges complain over and over again about counsel who refuse to answer questions, stonewall or otherwise evade. Postponing an answer is almost as bad, and if an attorney wants to get a judge good and lathered, he should follow Kozinski’s advice and cut off the judge’s questions in mid-sentence. Kozinski, supra, at 331. In addition to being well-nigh inevitable, questions present opportunities. A judge’s questions reveal his or her thinking about the case and, if the judge has any concerns, those questions give the oral advocate the opportunity to address and allay them. Moreover, while a lawyer giving a speech can only try to anticipate such concerns, a lawyer responding to a question can tailor the answer directly to them and answer follow-up questions as well. By quickly and cogently answering questions about the record and the law, an advocate can build up credibility with a court that will make his or her other arguments more persuasive. For this reason as well, an oral advocate can be far more persuasive than a brief writer or orator. It is, of course, important to be realistic about oral argument. These days, counsel normally have at most 30 minutes to argue, and in intermediate appellate courts it may be only 10 or even five minutes. As much of this time can, and should, be occupied by questioning from the bench, an advocate can expect to make only two or three points at oral argument. Moreover, it is better to drive home one argument well than to try to make several points weakly. Thus, judges frequently advise oral advocates to “[g]o for the jugular” and to “[s]trike [only] a few blows” but “strike them to the heart.” Ruth Bader Ginsburg, “Remarks on Appellate Advocacy,” 50 S.C. L. Rev. 567, 571 (1999); Myron H. Bright, “The Ten Commandments of Oral Argument,” 67 A.B.A. J. 1136, 1139 (1981). Judges also stress that effective oral advocacy requires flexibility. An oral advocate should be ready to respond to any opportunity that presents itself. If the judges swallow an attorney’s best argument right away, there is no reason for the attorney to keep casting about for support. Conversely, if they aren’t biting on the point, the attorney should move on to something else. The attorney should be alert to any doubts that judges sympathetic to his position may have and try to allay them. He should remain on the lookout for any misconceptions underlying a judge’s opposition to his points and address them. Even if the attorney can’t dissuade that judge, he may persuade the other panelists and provide them with ammunition to use in conference. Oral argument is as much about confirming and equipping one’s allies as it is about converting erstwhile enemies. More like jazz than classical An effective oral argument is more like jazz than classical music. No matter how beautifully composed an argument may be, one cannot expect to play it exactly as planned. An attorney instead must be willing to improvise, to adapt his themes and melodies to the way that the argument develops and take advantage of the opportunities that present themselves. Finally, it is important to recognize that oral argument is most effective when it engages the bench. As noted above, a good oral argument is like a conversation in which the advocate talks with the judges and exchanges ideas with them. Such a conversation allows the judges to clarify the record, identify and confirm the issues in the case and test their theories for resolving it. At the same time, it gives the advocate an opportunity to make a few key points, help the court understand the case and discover and diffuse any reasons why the judges may be leaning the other way. In addition to providing insight into the basic nature of, and strategy for, oral argument, judges have offered excellent suggestions on preparing for and conducting oral argument. Judges continually stress the importance of thorough preparation. Because they rely upon counsel to clarify the record, counsel should know the record backward and forward-including not only the appendix filed with the court, but also any material facts omitted from the appendix. As judges frequently test out legal theories at oral argument, counsel should review not only the specific cases cited, but also the general law in the area. And while it is impossible to anticipate exactly what hypotheticals will be raised, an oral advocate can prepare by formulating his own hypotheticals and working out principles for answering them. Judges recommend adopting a tone of respectful equality with the court. They stress the importance of making eye contact with the court, which engages the judges and makes oral argument more conversational. They recommend that counsel speak clearly and at a “proper intellectual cruising speed” so that they can be understood. Murray I. Gurfein, “Appellate Advocacy, Modern Style,” reprinted in Litigation Manual: Special Problems and Appeals, 303, 304 (1999). They warn against flattery (because “[w]e think well enough of ourselves already”) and against overtly emotional appeals (because appeals are supposed be decided based upon law, not sympathy for particular parties). Robert H. Jackson, “Some Suggestions for Effective Case Presentations,” 37 A.B.A. J. 801, 802 (1951). But they advise parties to take advantage of any equities presented by the facts of the case. See, e.g., Gurfein, supra, at 305; Roger J. Miner, “The Don’ts of Oral Argument,” reprinted in Litigation Manual: Special Problems and Appeals, 310, 313. Some judges advise counsel to begin oral argument by reminding the panel of the case with a description of the parties, the key facts and the basic issue, which should be either longer or shorter depending on whether the judges have closely studied the brief. Others recommend that advocates tell the panel which issues they plan to cover so that the judges can raise any other issues they wish addressed. Judges uniformly warn against dividing argument between counsel, and most recommend that counsel use precedent and citations sparingly and focus instead upon principles, which are more easily grasped and applied orally. Finally, judges recommend that counsel be brief. They suggest that rebuttal also should be used sparingly and that counsel should not feel obligated to take up all of their allotted time. Once an advocate’s best points have been made, his position may be undermined by making weaker points or by prompting questions that might not otherwise have been raised. In addition, judges appear to be genuinely impressed when an oral advocate has the confidence to sit down before the allotted time is up-which is no doubt why Davis’ final word of advice on oral advocacy was to “[s]it down.” Davis, supra, at 898. Daniel H. Bromberg is a partner in the Redwood Shores, Calif., office of Quinn Emanuel Urquhart Oliver & Hedges, where he practices appellate and U.S. Supreme Court litigation.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.