It’s a well-known fact: U.S. federal courts, including appellate courts, are extraordinarily busy. Today’s judges and clerks are faced with a steady stream of motions, panel and en banc argument sessions, petitions for rehearing, and administrative responsibilities. At least in the U.S. Court of Appeals for the Fifth Circuit, many also are entirely comfortable reviewing briefs and even the electronic record from the comfort of an iPad. It’s no surprise that in this technological age where most legal work is done behind a computer screen, fewer than one-third of fully briefed cases receive an invitation to present argument in person.
A few lesser-known facts: How to get that invitation, how best to prepare for oral argument, and what to do when standing before the panel itself. The following ideas can help prevent a case from being converted by a circuit court to “No Oral Argument” and giving it the strongest likelihood of success.
Make a Case for Oral Argument
Although FRAP 34(a)(2) favors oral argument, it does allow a panel to refuse oral argument if, by unanimous agreement, the panel finds it unnecessary. Nowadays, only those cases that are so unique or complex that panel members feel they should engage in substantive discussion before issuing an opinion are designated for oral argument.
Do not overlook the statement regarding oral argument. This is the first substantive offering a judge or clerk will review in your brief. Grab the court’s attention with specific reasons why an in-person discussion would help resolve the case. Boilerplate language will be skimmed over and provide an unfavorable impression of what is to come.
As former Supreme Court Chief Justice William Rehnquist wrote in his book “The Supreme Court: How It Was, How It Is,” “If oral argument provides nothing more than a summary of the brief in monologue, it is of very little value to the court.” With this in mind, attorneys should seek to highlight some novel issue, identify an intra- or intercircuit split, or make a plausible claim that the court’s decision will have an effect that extends beyond that particular case.
Once initial research is complete and briefs are filed, avoid bootstrapping information after the fact through the use of FRAP 28(j) supplementary letters. Certain courts, particularly the Fifth Circuit, routinely strike such letters unless they cite very recent developments.
Know — and Prepare for — Thine Audience
Once oral argument has been granted, this concept bears repeating: know the audience. While intelligent, soundly reasoned briefs and oral arguments are baseline requirements, it’s equally important to remember who will be reading, hearing, and considering these documents and presentations. Each court has its own unique judicial history, processes, and preferences, and lawyers are well served to understand and adhere to established protocols.
Some courts, including the Fifth Circuit, announce the assigned panel with as little as one week’s notice. That still allows time to research the panel and identify key information such as the judges’ backgrounds, legal careers, and party of political appointment; whether cases cited in briefs were authored by any current panel members; whether panel members live in areas where the legal issue is particularly salient; and, in diversity cases, whether the panel members are familiar with relevant state law.
Attend court in advance. Doing so will provide a good sense of the pace of arguments, how hot or cold the bench might be, and whether any particular questions are favorites among the panel members.
Appearing Before the Panel: Less Is More
Permit a cliché: you only have one chance to make a first impression. The judges may know the case and briefs inside out, but they don’t always know the lawyers who will be appearing before them — and when all is said and done, the goal is for them to talk about the arguments, not the attorneys.
Just as written arguments should be kept focused and on topic, presentations should be equally neat and streamlined. Avoid teams of lawyers that do little more than pass notes. Bring only the files and materials necessary to get the job done. If the questions turn toward an obscure part of the record or a case name is forgotten, simply request leave to submit a short supplementation letter following the argument. Keep the counsel table uncluttered. And never, ever shuffle papers under the microphone!
Speak up and slow down. True, judges’ schedules are tight. But it’s better for an attorney to speak once in a clear voice than to have the judges ask him or her to repeat what was just said.
Personal opinions, impassioned pleas, and any form of showmanship should be avoided. In “Ruminations from the Bench: Brief Writing and Oral Argument in the Fifth Circuit,” the Hon. Jacques L. Wiener Jr. said memorably, “Hot air and hyperbole seldom if ever achieve anything.” Dramatics may be seen as an attempt to shift attention from a weak legal argument. Also avoid raising new arguments that were not documented in the district court or the opening brief, as such efforts typically result in the court simply responding, “Argument waived.”
Respond to questions immediately, even if doing so temporarily changes the prepared script. On the other hand, if it is your adversary that dodges the panel’s questions, seize the opportunity by addressing those questions right off the bat in rebuttal.
Last of all, one should have the courage of one’s convictions and the courage to end the presentation and sit down while there is still time on the clock. In so doing, you might just see an appreciative nod from the bench.
Justin M. Woodard is an associate in the Business and Commercial Litigation Group of Jones Walker in New Orleans. He served as a law clerk on the U.S. Court of Appeals for the Fifth Circuit from 2016-17. He can be contacted at firstname.lastname@example.org.