Knowing one's audience is the cardinal rule of oral advocacy. Although the fundamentals—preparation, simplicity, candor, responsiveness—apply in any forum, effective oral advocacy requires that lawyers be mindful of the differences between trial and appellate courts, in particular when presenting argument. Understanding and accounting for those differences can help to sharpen the effectiveness of oral argument and ensure that it is truly useful to the court in deciding the case before it.
This article focuses on three particularly important differences between trial and appellate courts and offers practical advice for appreciating and accommodating those differences when preparing for and delivering oral argument: the different roles played by trial and appellate courts in our system of justice; the various time constraints under which trial and appellate courts typically operate; and the contrasting composition of trial and appellate courts, i.e., the single trial-court judge versus the multiple judges on an appellate panel.
It is critical to appreciate the distinct roles that trial and appellate courts play in our justice system. Trial courts make judgments that are primarily case specific, while appellate courts settle questions that cut across cases. As a result, oral argument before an appellate court is likely to focus on how a particular ruling would impact other cases. This is usually explored in the form of hypotheticals testing the application of a rule of law to various factual scenarios. That said, when arguing before an appellate court, one should anticipate and even welcome hypotheticals posed by the court. While they may be challenging to answer, hypotheticals provide a valuable opportunity to demonstrate to the court the correctness of the legal rule one is advocating.
Resisting hypotheticals at oral argument before an appellate court because they are not relevant to the attorney's case or are not the facts in that specific case not only irritates judges but also squanders an opportunity to persuade them that the legal rule being advocated applies in a variety of circumstances and contexts beyond the facts of any one particular case. A good appellate advocate will take the time to understand and explain how her case fits into the larger context of legal doctrine and how the ruling will affect other cases.
In contrast, trial courts typically focus on the details of a particular case, and their decisions typically apply only to that particular case. Therefore, the focus at oral argument is more likely to be on reaching the right result given the specific facts of a particular case. One should never assume, however, that trial court arguments exclusively focus on the facts, and that appellate arguments focus only on the law. Often, the opposite is true—the trial court may have serious questions about the state of the controlling law, and the appellate court may have important questions about the facts in the record.
In a case where intervening Supreme Court case law may have weakened the force of an otherwise-controlling precedent but the court of appeals has not yet ruled one way or the other, a trial court may question whether it has the authority to follow the Supreme Court case, or whether it is bound to follow the court of appeals precedent unless and until the court of appeals addresses the issue.
In a products-liability case to determine whether a particular device is inherently dangerous, the appellate court—which has only the cold record before it—may have fact-based questions about how the product actually works, how it works compared to other devices, etc. The bottom line is that relentless preparation as to both the law and the facts in trial and appellate courts is a must.
It is also critical to understand the different time constraints under which trial and appellate courts operate. Although all courts throughout the state and federal justice systems are busier than ever, trial courts are under particular pressure to move cases along. Oral argument is typically the exception rather than the rule, and it tends to be short.
Compounding all of those time pressures, a busy trial judge is likely to have a variety of different obligations and tasks on the daily docket, in contrast to a panel of appellate judges, which typically can devote the day to hearing arguments during an argument session. Furthermore, a busy trial judge may not have the same luxury of being able to independently research the issues and the law, as might an appellate court.
A good advocate in a trial court will appreciate that the judge's time is scarce and understand that the judge's attention may be divided among numerous pressing tasks. That puts a premium on concision, responding directly and succinctly to questions, and distilling one's arguments down to the essentials. Given the press of time and other obligations, even the most diligent trial judge may not have been able to read and analyze the papers (or key cases) as thoroughly as she would have liked before the argument. As a result, the wise advocate comes prepared to tactfully educate the judge, as need be, regarding the issues for decision, the key facts and law, and any procedural considerations that will need to be addressed.
In contrast, as a consequence of the relatively slower—although by no means leisurely—pace of work in appellate courts, one can generally expect that the judges will have read and absorbed the briefs and the arguments they make. As a consequence, when arguing before an appellate court, one risks annoying the court by belaboring a recitation of the facts, or providing a longwinded description of the cases. (If it becomes apparent during the argument that there is a "disconnect" between the panel's questions and the issues raised in the briefs (or the authorities cited therein), an appellate advocate should be nimble enough to fill any gaps in the course of delivering oral argument.)
It is important to prepare for the differing compositions of trial and appellate courts. In the trial court, there is an audience of one, while in an appellate court an advocate is faced with at least three judges—and sometimes nine or more if arguing before a supreme court or an intermediate appellate court sitting in full to rehear a case. The consequences of that difference for preparing and delivering oral argument cannot be overstated.
An appellate argument can be as much of a conversation among the judges as a discussion between the judges and the advocates. An appellate judge may ask a question that appears "hostile," not because she disagrees with the advocate's position but because she is attempting to address what she knows to be of concern to another judge.
Furthermore, an appellate judge may ask questions designed to help persuade her fellow judges to adopt her own view of the case. As U.S. Supreme Court Justice Antonin Scalia has explained: "It isn't just an interchange between counsel and each of the individual Justices. What is going on is also to some extent an exchange of information among the Justices themselves. You hear the questions of the others and see how their minds are working, and that stimulates your own thinking." Hon. Joseph W. Hatchett & Robert J. Telfer III, "The Importance of Appellate Oral Argument," 33 Stetson L. Rev. 139, 142 (2003)
When arguing before an appellate court, it is critical to be aware of this dynamic so that one can perform the sometimes difficult balancing act of responding to the panel's questions and concerns while maintaining focus on the main points that are vital to winning the case. It is advisable to focus on those main points—no matter how intense the questioning—by "pivoting" to those points after answering a question or by weaving those points into answers whenever possible.
Moot arguments are therefore extremely helpful in preparing for an appellate argument, as they provide not only an opportunity to become comfortable with the dynamic of multiple questioners but also to hone one's responses and test out what does and does not work before the actual argument. Some very successful advocates do not hold formal moots, but in general most appellate advocates consider at least one (or more, if time and budget allow) a necessity to prepare for oral argument before an appellate court.
While it is always important to try to anticipate questions and plan out responses in advance of a trial court argument, moots are generally not as necessary in preparing for an argument in a single-judge forum. There certainly exist exceptions to that general principle, such as where a case involves a particularly complex issue, an issue of first impression, or an issue on which there is a split in authority.
The best oral arguments—whether in trial or appellate court—are, in essence, conversations among advocates and judges. Successful oral arguments, like successful conversations, require a respectful understanding and appreciation of each other person's circumstances, priorities, and constraints. Understanding and accommodating the differences between trial and appellate courts when preparing and delivering oral argument is critical to success in each forum.
Allyson N. Ho is a partner at Morgan, Lewis & Bockius and co-chair of the U.S. Supreme Court and appellate litigation practice, resident in Dallas. Kelly A. Moore is a partner in the firm’s litigation practice, resident in New York.