In late March, the public’s attention was focused on appellate oral arguments to an extent and intensity rarely seen, as the U.S. Supreme Court heard day after day of oral argument on the lawfulness and constitutionality of the so-called federal health care mandate. As an appellate advocate, one frequently hears that the most important part of any appeal are the briefs on the merits.Consequently, appellate oral argument plays a secondary role in the decision-making process, with appellate judges consistently reporting that oral argument only changes their minds in 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 those small minority of cases in which oral argument will make a difference. And, 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.
In other words, if the judges at oral argument appear to be indicating that they already agree with your client’s position, then you do 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, then you have no alternative other than to attempt to use the oral argument to change their minds.
When I first began to present appellate oral arguments many years ago, I was routinely impressed by the high degree of familiarity with the cases being argued that the appellate judges brought to oral argument. Of course, as an advocate for one of the parties, it was my job to ensure that I knew as much or more about the case being argued than anyone. That involved knowing not only the facts of the case and the relevant procedural history, but also the facts and holdings of the case law that the parties cited in their briefs that might control the outcome of the appeal.
No doubt the most fulfilling appellate oral arguments are those cases in which the judges on the panel have obviously read and understood the appellate briefs that you have submitted and perhaps have evidenced through their questioning from the bench that they are in agreement with the arguments that you have advanced in your appellate briefs.
It is easier for judges to appear completely prepared for oral argument when they are dealing with a reasonable oral argument caseload. For example, at the 3rd Circuit, a typical day of oral argument before a single three-judge panel is likely to involve the argument of four to six cases. A typical day of oral argument in the Pennsylvania Supreme Court is likely to involve between five and 10 cases. By contrast, a typical day of oral argument in the Pennsylvania state intermediate appellate courts — the Superior Court and the Commonwealth Court — may entail the oral argument of 20 or more separate cases. Preparing for the oral argument of 40 or more cases at a two-day oral argument session no doubt presents a difficult challenge.
Two particular oral arguments come to mind when I think about oral arguments in which I have participated where at least one of the judges on the panel exhibited particular hostility to the position that I was advocating on my client’s behalf.
In a case from a number of years ago, I accepted a pro bono appointment from the court to argue a 3rd Circuit appeal in a case involving an attorney’s appeal challenging his suspension from practice before the U.S. District Court for the Eastern District of Pennsylvania as reciprocal discipline for that attorney’s suspension from practice in the state courts of Pennsylvania. My task was to argue in favor of affirmance of the district court’s imposition of reciprocal discipline, and I thought that the case for affirmance was rather strong based on the facts and authorities discussed in my appellate brief.
At the oral argument, however, my time at the lectern was largely dominated by obviously hostile questioning from one of the 3rd Circuit judges on the panel who had unique and unexpected insight into the case based on his having previously served, before becoming a judge, as an official involved in the attorney disciplinary process in New Jersey. In addition to having to deal with that judge’s incessantly hostile questioning, my ability to engage with the other two members of the panel was limited by the fact that one of the other two panel members was participating in the oral argument via videoconference from his chambers in Newark, N.J.
Many months later, I learned that the position I had been appointed to advance in favor of affirmance had prevailed by a 2-1 vote, with the judge who had expressed obvious hostility to my position at oral argument in dissent. In retrospect, however, that was a great experience as an advocate, because it serves as a reminder that no matter how obviously in disagreement with your position on appeal one judge on a three-judge panel may appear, you can still win the case by obtaining the votes of the remaining two panel members.
Much more recently, I argued an entirely separate case involving a rather mundane issue before a three-judge panel of the Superior Court of Pennsylvania. My case happened to be last on the oral argument list on the first day of a two-day oral argument session in which more than 40 cases were being argued. My case was approximately the 20th case for oral argument that first day and was not called for oral argument until mid-afternoon on a day when the panel began hearing oral arguments at 9:30 a.m.
At issue in the case was whether the plaintiff or the defendant should bear the consequence for having failed to obtain court approval of an earlier settlement that required court approval. If the court decided to enforce the settlement regardless of the lack of court approval, then it would be the plaintiff that suffered the consequences. However, if the court decided not to enforce the settlement due to the absence of court approval, then it would be the defendant that suffered the consequences.
I was arguing on behalf of my client, the plaintiff, that earlier rulings of the Superior Court of Pennsylvania and the Supreme Court of Pennsylvania had already resolved the issue in favor of my client. However, one of the judges on the panel strongly disagreed that the issue in question deserved to be resolved in favor of the plaintiff rather than in favor of the defendant.
The disconnect between the judge and me seemed to focus on whether governing Pennsylvania precedent had already resolved the matter in controversy. With so many cases on the oral argument calendar, it is not unusual that one of the judges did not yet have time to review the case law on which the briefs had relied.
I attempted to handle the matter in the most dispassionate way possible, by simply advising the judge that her view concerning how the issue in question should be resolved was not unreasonable, but it was contrary to earlier, still binding precedent from both the Superior Court and the Supreme Court of Pennsylvania that required that the appeal be resolved in my client’s favor. This case has not yet been decided, so it is too soon for me to know whether this will turn out to be one of those rare oral arguments that actually changed a judge’s mind about the proper outcome of an appeal.
Because there is no way to anticipate when an appellate oral argument will change a judge’s mind, the advocate must prepare as though each and every oral argument might be the one to do so. However, given how rarely an oral argument will change an appellate judge’s mind, it is far more comforting to find out at oral argument that the judges appear to already agree with your client’s position than to be faced with having to change their minds.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via email at email@example.com and via phone at 215–830–1458. You can access his appellate Web log at http://howappealing.law.com.