Samuel C. Stretton ()
Oral argument in appellate court
I have my first oral argument before an appellate court in Pennsylvania. What advice would you give?
Oral argument before a trial judge or before an appellate court is a very challenging and rewarding experience for any lawyer. It never ceases to surprise that so many lawyers submit their briefs as opposed to arguing the case in court. Argument provides a chance for lawyers to ensure judges understand the issues and correct any misunderstandings. Further, it provides both the lawyers and the judges an opportunity to meet and get to know each other.
The most basic point for any oral argument is to be concise. Only in the rarest of cases is there any need to discuss detailed facts. The appellate judges have read the facts and know the case.
Second, although a lawyer could raise several issues, a wise lawyer would only argue one or two. Judges are not going to treat the unargued issues as waived. Lawyers should emphasize the issues they think are the strongest.
Further, when arguing, lawyers must remember theirs is not the only case listed. Judges are just like everyone else—they get tired and their attention spans are going to waver at times. The key is to emphasize the highlights of the argument and respond to questions, but not just continue to talk.
In arguing an appellate matter, lawyers must be very careful not to keep repeating themselves. Appellate judges are very bright and understand the issues.
Lawyers arguing before an appellate court have to be absolutely candid. The worst thing lawyers can do is make a serious misstatement, because that will come back to haunt them with appellate judges. At times, lawyers may make a mistake and that is understood, but candor is a critical part of appellate argument.
In arguing, lawyers should not demean their opponents. Many appellate judges know the various lawyers who appear before them. It doesn’t help one to demean opposing counsel, particularly if the appellate court respects the person the lawyer is demeaning. Demeaning one’s opponent gets one nowhere on the merits of the case. It is a bad practice. The modern practice of attacking one’s opponent appears to be a sport, but it is a sport that should stop because there is no way to win the game with that approach.
Respond to judges’ questions. A major mistake for a lawyer, when a judge asks a question, is to suggest that he or she will get to the answer later. Look at the judge and answer the question directly. Do not be evasive. During the argument, emphasize the strengths and concede any weaknesses. If lawyers don’t know the answer to a question, they shouldn’t try to slide by and just state candidly they don’t know or will have to check the record. Although in an appellate argument, one wants to be fully prepared and hopefully never has to say one doesn’t know when questioned by an appellate judge, it does happen.
When an appellate judge begins talking, the lawyer stops talking. Never, ever, even in the passion of appellate argument, talk over an appellate judge. Further, it is in the lawyer’s interest to hear what the judge is saying. Only then will a lawyer get a sense of what is bothering either the judge or the court and at least have an opportunity to respond to that concern.
Beware of using rebuttal time. The Pennsylvania Supreme Court does not allow any rebuttal time. But the Commonwealth and Superior courts do. These courts have limited the time for argument. Lawyers would do better not asking for a rebuttal and instead focusing on concisely stating their argument initially. But if the lawyer needs the crutch of rebuttal time, then only take a minute or so to respond to something that is patently false.
Never read before the appellate court. Lawyers who read their arguments in part are really doing themselves and their clients a disservice. If a lawyer is nervous, he or she should spend the time before and memorize the argument, then look at the judges and talk directly.
Never use charts in an appellate argument. Appellate judges don’t like charts and many courts, such as the Commonwealth Court, frown on a lawyer using a chart. Even in this visual age, there is still a need for eloquence in arguments and not for show and tell.
Never have your client sit at counsel table during an appellate argument unless the case is in the original jurisdiction of the appellate court. The state Supreme Court has flatly prohibited that and presumably the other courts feel the same.
In an appellate argument, lawyers must remember they are not arguing to a jury. Although everyone enjoys a passionate argument, the argument has to be focused on the law. General arguments, no matter how passionate and eloquent, are a waste of time in the appellate court.
Lawyers should use their time wisely. Anecdotes and digressions should be watched very carefully. Time goes very fast and if a lawyer starts to digress or talk about personal issues, he or she loses the opportunity to present an argument.
In arguing, stand at the podium. Don’t look at notes. Look the judges in the eye and try to encourage questions. Enjoy the give and take and challenge of questions.
Make the argument interesting. Don’t just go up and recite case law and arguments in a monotone voice. Make the argument interesting to the judges.
Finally, understand the scope of review. It does a lawyer no good to argue tremendous facts when the scope of review is different. Understand what the court can consider and review and focus the argument.
The art of appellate argument still exists. Every lawyer who has an argument ought to watch others. Even seeing bad arguments can be a way of learning. Watching an argument, one can clearly see from the audience the mistakes a lawyer is making or the failures of a presentation. All lawyers should identify themselves when they come to the podium to argue—by name and whom they represent. It is a terrible discourtesy not to, even if a lawyer believes the judges know the lawyer.
Appellate advocacy is an enjoyable intellectual challenge and, if done properly, can change the law or help a client’s cause. Lawyers must be prepared and must know the rules. Lawyers must know how to focus an argument and, most importantly, know when to sit down. But appellate arguments are a wonderful experience and every lawyer who has the opportunity to make an appellate oral argument should take advantage of it.
It’s best not to use client testimonials
I am going to start a vigorous advertising campaign. Can I have clients come in and give testimonials about receiving excellent legal services?
Lawyer advertising has been allowed since 1977. Rules of Professional Conduct 7.1, 7.2 and 7.3 are the basic advertising rules in Pennsylvania. The rules prohibit unjustifiable expectations and misrepresentation or fraud.
Rule 7.2 also has specific advertisement requirements. If a lawyer is going to use a client in an advertisement, the lawyer must comply with Rule 7.2(g). An advertisement cannot contain a portrayal of a client by a nonclient. It cannot contain reenactment events, scenes or pictures that are not actual or authentic. Otherwise, a lawyer has to disclose what the advertisement is showing is an act or dramatization and the person is not the real client.
Even more importantly, testimonials by clients are very dangerous and can violate Rule 7.1. That rule prohibits a lawyer from making false and misleading communications. Comment 3 to the rule notes:
“An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters, without reference to the specific factual and legal circumstances of each client’s case.”
This comment summarizes the problem with using client testimonials. The client may think a lawyer is the best person to walk the planet because the lawyer obtained a good result for the client. But the client might not be in a position to know the full story. For instance, another lawyer might have gotten double the amount. Although the client thought the recovery was excellent, perhaps the lawyer would have gotten an even better resolution with more experience.
The better practice is not to use client testimonials. Using them usually ventures into the area of unjustified expectation or subjective beliefs that can be considered misleading and potentially trigger disciplinary action. Further, a lawyer should be careful with what he or she says in advertisements because the attorney-client privilege still applies. Obviously, a client can waive the privilege, but it is not always the wisest thing to do.
Clients come to lawyers because they have a problem. Hopefully, a lawyer can solve the problem in some fashion. But it is not usually in the clients’ interest to have their names spread over the newspaper or advertisements of any kind. Most people don’t need that invasion of privacy in their lives, just so the lawyer might get another case. The better practice is really not to involve clients in one’s legal ads.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.