Upon Further Review

Howard Bashman. Howard Bashman.

Today’s column is the third and final installment of a three-part series intended to help readers understand and hopefully avoid some of the most troublesome pitfalls lurking in appellate practice. This column focuses on what usually represents an advocate’s final opportunity to persuade the judges to rule in the client’s favor—the appellate oral argument. Part one of this series, which appeared in December 2018, focused on the notice of appeal that begins the appellate process. And part two, which appeared last month, focused on appellate briefs.

As an appellate advocate, one frequently hears that the briefs on the merits are the most important part of any appeal. Thus, appellate oral argument typically plays a secondary role in the decision-making process, with appellate judges reporting that oral argument changes their minds in only a small percentage of the cases.

Of course, it is difficult to know in advance whether oral argument will make a difference in any particular appeal. For that reason, you must prepare for every oral argument as though the case may be one of a small minority of cases in which oral argument will make a difference. Until the oral argument begins, it is impossible to know what the judges are already thinking about the case, and whether it will be necessary to change their minds in order to prevail.

If the judges at oral argument appear to be indicating that they already agree with your client’s position, you would not want your case to be one of those rare cases in which oral argument serves to change their minds. On the other hand, if the judges at oral argument indicate that they disagree with your client’s position, you have no alternative other than to attempt to use the oral argument to change their minds.

Typically, at the outset of my preparations to argue an appeal, I will reread the parties’ appellate briefs and the trial court’s opinion. I will also familiarize myself with the relevant case law and update my legal research to find any newly issued cases that were not cited in the briefs.

If the case involves more than one or two issues, it is usually a good idea to consider what issues should be the main focus of the oral argument and what issues can be omitted. Of course, the judges can ask questions about any issues in the case, and opposing counsel may decide to focus on additional issues, so a well-prepared advocate will be ready to address any of the issues involved, even those that were not going to be the central focus of his presentation.

One of the most important aspects of preparing for oral argument involves thinking about the weaknesses and vulnerabilities in your client’s case, what sort of challenging questions the appellate judges could ask on those topics, and how best to respond directly to those questions. In addition, it is important to anticipate hypothetical questions from the judges, who are seeking to understand the scope or limits to the legal principles that you are asking the court to adopt or apply. Appellate advocates must be prepared to respond to hypothetical questions at oral argument instead of seeking to evade them as not involving the facts of this particular case.

If you have never argued before the particular court in which your appeal is pending, it is useful to attend an earlier argument session or listen to the court’s oral arguments that are available over the Internet. The U.S. Court of Appeals for the Third Circuit posts its oral argument audio recordings online, but Pennsylvania’s state appellate courts do not. Indeed, in Pennsylvania’s state appellate courts, the oral arguments are not officially recorded or transcribed, so whatever happens at oral argument exists thereafter only in the memories of the participants and observers.

Another thing that is useful to know in advance is whether and how the time remaining at oral argument is displayed to the advocate. At the Third Circuit, color–coded lights along with a digital clock allow the advocate to see precisely how much argument time remains. By contrast, at the Pennsylvania Superior Court, the presiding judge maintains a device that will beep when the time for argument has expired, but the advocate cannot see from the podium exactly how much time remains. In that latter situation, the advocate should be prepared to monitor his own argument time simply to ensure that the points that need to be made at argument are emphasized before all time has expired.

Inexperienced appellate advocates might view appellate oral argument as the perfect opportunity to deliver prepared remarks to the appellate judges, perhaps in the impassioned nature of a closing argument to the jury at trial, and thereby attempt to evade or ignore the questions posed from the bench. In practice, however, there is no surer way to incur the wrath of the appellate court.

At oral argument, your first priority must be answering the judges’ questions. Frequently that means having to adjust the order and emphasis of the arguments you had planned to make, but with experience that becomes easier and easier to do. I have rarely heard experienced appellate attorneys complain that they have received too many questions from the judges who will be deciding the appeal, but appellate attorneys are commonly disappointed if they receive too few questions at oral argument.

From time to time judges will ask “what’s your best case for that proposition” or “where can we find that in the record on appeal,” so you should be prepared to answer these types of questions. If you receive a question whose answer you simply do not know, it is better to honestly report that you don’t know instead of giving a potentially incorrect response that could inflict far greater harm on your case.

The best appellate oral arguments are the ones that are, in essence, a conversation between the judges and the lawyer. It is better to elicit and attempt to address whatever concerns the judges may have about the merits of your case while you still have the opportunity to do so than to cut off all questioning because you are speaking too quickly or too stridently. It is also possible to convince the appellate court that the trial judge made a mistake or that the opposing party acted inappropriately without having to be impolite at oral argument toward the trial judge or opposing counsel.

If you prepare sufficiently and remain mindful that the main purpose of any appellate oral argument is to answer the judges’ questions, you will find that appellate oral argument can be both productive and enjoyable.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached by telephone at 215-830-1458 and via email at hjb@hjbashman.com. You can access his appellate web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.