The lawyer rises and approaches the lectern. She stands before the appellate court for the first time (or maybe the first time in a long time). She swallows, takes a deep breath, and begins: “May it please the court.”
There are volumes of books and papers on appellate advocacy. Certainly no single article can turn the first-time advocate into the next Clarence Darrow. However, here are some basic ideas and suggestions to help the inexperienced attorney survive oral argument.
1. Relax, it’s almost over already. The majority of the persuasive workload in an appeal isn’t carried by the oral arguments but by the briefs. The briefs frame the issues before the court and detail the laws and facts each side thinks are relevant in resolving those issues. As a result, most of the work in persuading the court has occurred before the lawyer even approaches the lectern.
2. Despite item No. 1, oral advocacy does have a role. Justices don’t grant oral argument for purposes of entertainment. They do so in hopes that it will aid them in reaching the correct decision (by confirming, narrowing or changing their preliminary positions based on the briefs) or in making the opinion easier to write. The oral advocate’s role isn’t to argue with the court; it’s to clarify where and why the parties disagree, defend the client’s position and point out weaknesses in the other side’s arguments.
3. Know both sides of the case, but especially your side. To provide clarity, the lawyer needs to understand all the parties’ arguments. The gold standard for understanding both sides’ arguments and how they overlap or conflict with each other is when the advocate knows what she can concede and still win.
However, it’s absolutely imperative that the advocate understand her own client’s positions. Nothing falls apart faster than the credibility of an attorney who can’t explain what a statement in her brief means.
The best way to avoid this is for the lawyer making the oral argument to write the brief for her side. If that’s impossible, she must spend the extra time needed to insure that she knows the brief as well as if she had written it. That’s why preparation is important.
4. Preparation takes time. A lawyer shouldn’t wait until the day before jury selection to prepare for trial. Neither should the appellate lawyer put off thinking about oral argument until the day before the case is submitted.
Inexperienced attorneys always underestimate the amount of time and effort needed to be ready for argument. Block out time on the calendar for preparation, and start earlier than seems necessary.
5. Case the joint. Seeing firsthand how the court works is educational and helps reduce jitters. Visiting the courtroom well in advance of the submission date and watching other lawyers argue one or two cases can put the lawyer at ease, making her a more confident and effective advocate for her client.
6. Check out the panel. When the case is set for argument, the clerk will send a letter identifying the justices who will hear the case. The smart lawyer will review the critical cases cited in the briefs to see if any of those justices were involved. Oral argument isn’t the time to be surprised.
7. Be ready to cast a wide net, but focus on the big fish. Counsel must prepare to discuss any issue in the case, but time limits usually compel her to focus on the one or two issues most likely to benefit from argument. At the beginning of oral argument, the lawyer should announce those issues on which she intends to focus, stating that — absent questions from the bench — she is relying on her brief for the other issues.
8. Don’t read a script. Reading to the court at length is a bad idea. Ergo, writing out the oral argument script is a bad idea. (For the same reason, regurgitating extended excerpts from the briefs is a no-no.)
Instead, counsel should outline the issues in the case (using the briefs as a starting point), and include a phrase that encapsulates the party’s position on each one. Some attorneys also bring to the podium a separate sheet listing the critical cases cited in the briefs, a short summary of each case, and the best argument(s) as to why that case does or does not control the case being argued.
9. Exceptions prove the rule. Even though reading an oral argument is unwise, counsel should write out a good opening and a good closing, each no more than one or two sentences long. A planned, strong start and finish provide the lawyer with confidence, even if they turn out to be unnecessary. Additionally, if the lawyer wishes to state a critical phrase or sentence in a precise way, it’s fine to write it out verbatim and have it available.
10. Don’t fear questions. Queries from the court are opportunities to determine what worries the justices or what they think is important. They point to places where argument can make the most difference in the case. View them as stepping stones not stumbling blocks.
11. Answer the question. When the court asks a question, do three things. Stop talking and start listening carefully. Take a few seconds to formulate an answer before responding. Then, begin with a direct response to the question: “Yes,” “No,” or “It depends.”
It is considered bad form and counterproductive to talk over a question from the court or try to put off an answer until later in the argument. The question is a signal the justice wants to know something — now. Talking over the question reduces the advocate’s chances of understanding the question and formulating the best answer. And until the advocate responds directly to the question, the justice isn’t listening anyway. Instead, he is wondering why the lawyer is trying to avoid the question.
12. Time limits are not suggestions. There is no need to struggle to fill the entire time allocated for argument. Rather than meander through the case in an effort to use all the time given, the effective advocate says what she needs to say, then returns any unused time to the court, which will appreciate the lawyer’s efficiency and candor.
Oral argument can be daunting. But, for the novice practitioner, following these guidelines can decrease the likelihood of mistakes and boost the chances of a positive result for the client.