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Effective Oral Argument and Reflections on the Roberts Court

By Stephen Feldman and Lance Curry – August 24, 2015


What techniques make for an effective oral argument?


This question is at the heart of two programs that the ABA Appellate Practice Committee presented at the ABA Section of Litigation Annual Conference in April and at the ABA Annual Meeting in Chicago in July 2015.


The Appellate Practice Committee also presented a third program at the ABA Annual Meeting: a panel discussion of U.S. Supreme Court experts about the first 10 years of the Roberts Court. The program was one of the centerpiece CLE programs at the annual meeting. This article discusses all three programs. The committee encourages all of its members to attend the programs at the annual meetings.


Oral Argument: Learning by Mistake
At the Section Annual Conference in New Orleans in April, the Appellate Practice Committee presented a program called “Oral Argument Gone Wrong.” The program, as its title implies, is about mistakes made at oral argument—and the effects that those mistakes can have on your appeal. Two experienced practitioners gave a mistake-ridden argument to a panel of three appellate judges. A post-mortem followed.


The advocates argued a case that had been previously briefed, argued, and decided by the U.S. Court of Appeals for the Eighth Circuit. The case was a dispute between two charities whose missions were to help the families of military veterans. One charity accused the other of deceiving donors into giving to a different charity than the charity the donor intended. The plaintiff charity won a substantial trial court judgment.


Larry Orlansky, an attorney from the Stone Pigman firm in New Orleans, represented the appellant. He opened his argument by emphasizing that the founder of his charitable client is a decorated veteran. His rhetoric might have been worthy atmospherics for a jury, but it was not for an appellate argument—something noted by the presiding judge, the Honorable Carl Stewart. Judge Stewart is the chief judge of the U.S. Court of Appeals for the Fifth Circuit. He was joined on the panel by the Honorable Roland Belsome and the Honorable Rosemary Ledet, who both serve on the State of Louisiana Court of Appeal, Fourth Circuit.


Orlansky’s adversary was Igor Timofeyev, an appellate practitioner in the Washington, D.C., office of Paul Hastings. Both Timofeyev and Orlansky struggled (intentionally) with questions from the panel about the standard of review. In the post-mortem, the panel emphasized that the standard of review is the lens through which the appellate court views the case. This is especially true in a case, like the one argued in the program, that had different issues subject to different standards of review.


Orlansky and Timofeyev committed other errors as well, which underscored the importance of making a poised appellate presentation. At one point, Orlansky’s cell phone went off—something not unheard of at oral argument and a real blow to the advocate’s credibility. The advocates also showed lack of familiarity with the appellate record, another sin of appellate argument. The post-mortem included a discussion of why mastery of the appellate record supplements the advocate’s integrity and, what is more important, helps the appellate court make the right decision.


While the Section Annual Conference program focused on learning by mistakes, the program at the July 2015 ABA Annual Meeting centered on learning from pre-argument preparation.


The Annual Meeting program, entitled “Winning Advocacy: Oral Argument from the Inside Out,” was a variant of a similar program that the committee presented at the 2014 Section Annual Conference. In the program, before presenting a mock oral argument, two advocates privately shared key strategies with the audience. The presiding judges then, likewise, privately told the audience their greatest areas of interest. The mock argument followed, allowing participants to see the strategies unfold. After the argument, the judges conducted a mock conference to discuss their post-argument thoughts. The panelists and audience then engaged in a discussion of strategies and approaches that worked (and failed) during oral argument.


The program was led by experienced advocates and judges. The advocates were Joel Bertocchi of Hinshaw & Culbertson LLP and Catherine Stetson of Hogan Lovells. The panel consisted of the Honorable John Tinder of the U.S. Court of Appeals for the Seventh Circuit, the Honorable Mary Jane Theis of the Illinois Supreme Court, and the Honorable Edmund Chang of the U.S. District Court for the Northern District of Illinois.


The mock argument was based on Spokeo v. Robins, a pending case in the U.S. Supreme Court that has the potential to redefine standing in federal court. The issue in Spokeo is whether Congress can create Article III standing by authorizing a remedy for a bare statutory violation (e.g., a violation of the Fair Credit Reporting Act). The Supreme Court will decide Spokeo case during the October 2015 term.


The Legacy of the Roberts Court
The Appellate Practice Committee’s second program at the Annual Meeting focused on the U.S. Supreme Court over the past 10 years—Chief Justice John Roberts’s first 10 years on the Court.


This program also featured a blue-ribbon panel of U.S. Supreme Court practitioners, as well as Adam Liptak, the Supreme Court reporter for the New York Times. The panel reviewed the key decisions—and possible legacy—of the Roberts Court. Kannon Shanmugam of Williams and Connolly moderated the program, and Miguel Estrada of Gibson Dunn and Nicole Saharsky of the U.S. Solicitor General’s office served as panelists.


Keywords: litigation, appellate practice, ABA CLE, oral argument, Roberts Court


Stephen Feldman is an attorney with Ellis Winters LLP in Raleigh, North Carolina. Lance Curry is a shareholder with Hill Ward Henderson in Tampa, Florida. The authors are the cochairs of the Programming Subcommittee.


 
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