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Oral Argument for Young Lawyers

By Dennis Owens

Want to be a very good appellate attorney? The skills you will need are different from the skills required for trial lawyers.


You must be able to evaluate a case in light of the standard of review. You must have the gumption to tell the client or trial lawyer not to appeal the case that does not have a good chance of success. You must write clearly and powerfully. You must be able to perform well at oral argument.


Here are some insights into the oral argument process that have been organized into a set of rules and a true “war story” that illustrates how not to present oral argument. 


1. Do not waive oral argument. If a case is worth briefing, it is worth arguing orally. Senior Circuit Judge Myron Bright of the Eighth Circuit published a series of articles based on surveys of appellate judges. The judges reported that oral argument had altered their views of cases and that this had happened much more frequently than the working bar may have previously believed. If only one judge has ever changed his or her mind just once as a result of oral argument in all of legal history, then you should argue; this may be the second time.


2. Do not plan on giving a speech that will fill your time. You have already made your points in the brief. You should not have held anything back. The judges have read all the briefs. They do not want you to recite your brief to them.


3. Do not read your remarks. If you prepare some remarks (not a speech—Rule 2) to fill in the time before or between answering the court’s questions, do not read them. On a scale of one to ten, with ten being most persuasive and effective, reading a speech is a minus six. Neverread a statute, a contract provision, or ballot language. Put those in an addendum of your brief. Paraphrase their language. If you must quote, then quote the fewest words possible—from memory.


4. Answer the questions from the bench. Think of it this way: Later today these judges will meet, discuss, and vote on the fate of your appeal. Oral argument is one opportunity for you to participate in a first stage of that conference. You are there to answer their questions at their conference.


5. Answer promptly, answer fully, and answer candidly. To answer candidly, you must be a professional, you must be honest, and sometimes you must be courageous.


6. Think about your answer. The old aphorism is “You can’t win your case in oral argument, but you can lose it.” What does that mean? One judge may ask you in a friendly tone if your position implicates large public policy considerations or if it advances certain interests. Sensing an opportunity for support, you will be tempted to accept the idea being offered.  The danger is that the other judges may be dead set against that policy or that interest. By aligning yourself with those notions (which you have not really considered), you may needlessly undercut your case. It would be safer to point out that your case could be decided in your favor without this judge’s approach—or that you simply had not thought about this doctrine.


7. Be deferential to the judge. As soon as you perceive that a judge wants to ask a question, stop talking, set aside whatever point you were trying to make, and answer the question.


8. Know the record so you can answer fully. Know it cold. Never be forced to say, “I don’t know. I did not try the case.” Judge Alex Kozinski says that this is how to lose on appeal.[1]


9.  Know every crucial case’s holding. If both sides have cited a case for opposing propositions, know all of the facts and the law in that case.


10. Be careful when conceding.
Concede what you must concede (but nothing more).


11. Do not mention the trial judge at all. If you must refer to the court below, do not use the trial judge’s name. Instead, refer to “the trial court.” Remember that you are appealing from a judgment, not a judge. Appellate judges wear black robes just as the judges below.


Here is a secret: Within a very short time after ascending to the appellate bench, the judges know which of the trial judges in their jurisdiction are thoughtful scholars, lazy paper-shufflers, hard workers, touchy egomaniacs, plaintiff’s judges, defendant’s judges, and time-serving political hacks. The appellate judges do not need to be told that judge so-and-so “embarrassed the bench” or “made a mockery of the legal process.” Calm down. Do not make it personal.


12. Do not attack opposing counsel. In fact, do not even mention opposing counsel. Appellate judges each hate certain things—ignoring the rules, laziness, verbosity, legalese, needless repetition. But they all hate personal animosity between lawyers.


Once upon a time, I was law clerk for Chief Justice Robert Seiler of the Missouri Supreme Court. I watched nearly all the oral arguments before the court that year. In one case involving a great deal of money and arcane issues of law, the verbal fireworks were spectacular. The two lawyers were each senior partners of prestigious law firms. They looked the part—well-dressed, well-groomed, highly polished. They were articulate. They spoke with fervor, but not with apparent anger. They each spent a great deal of their time savagely attacking each other. One claimed that his “worthy opponent” was “deliberately misleading the court.” The other claimed that opposing counsel was “sullying the court with his distortions.” I later excitedly asked the chief justice, “What did you think?” He knew which of the several argued cases I meant. He shook his head and said sadly, “Dennis, it does not help us to decide these cases to be told why these lawyers hate each other.”  Never mention that the other side has lawyers, let alone that they are “misleading the court.”


13. Do not joke. Attempts at humor in oral argument almost always fall flat. Judges do not want to be entertained. They do not like wisecracks. Joking does not advance your argument. But, then, there is that famous story of a U.S. Supreme Court justice who posed a confusing, complex question that seemed to change as it unfolded. The solicitor general hesitated to respond. The justice scolded him, “Come now, it is an easy question.” Ted Olson replied, “Yes, sir. It is the answering that is hard.” A witty, self-deprecating response, if obviously spontaneous, may bring a laugh from the bench. But do not planon giving a funny answer. 


14. Never try to predict the outcome from your oral argument experience. Preparing for oral argument in one case, Chief Justice Seiler wrote out a series of questions for the purpose of obtaining ammunition for his participation in the judges’ conference in which he would advance the appellant’s position. The briefs had not precisely answered a number of the questions. The chief justice asked the appellant’s lawyer one question after another. The lawyer did not understand what the judge was doing. After a number of questions, the appellant’s attorney cut off the judge saying, “You seem to have made up your mind, Mr. Chief Justice. Would you allow me to answer any questions the otherjudges have?” I am sure that the lawyer was shocked when the decision came down, and it was only the chief justice who dissented in his favor. 


Maybe these rules can be demonstrated by the story of My Worst Day in Court—Ever. I was retained to pursue an appeal involving a dispute involving taxation, ballot language, and the state constitution. At that time, the Eastern District of the Missouri Court of Appeals was in the historic Wainwright Building in Saint Louis. I love that old building, but one of its courtrooms was oddly laid out. It was a very wide and shallow, with the bench only a few feet from the entrance it faced. The bench was low, and, by necessity, the podium was quite close to the bench.


The old lawyer who had retained me to handle the appeal had allowed me free rein in developing the case. He was enthused about our brief. He said that he was going to attend the oral argument.


That morning, he asked me if he could take a bit of my time and make “one point.” I was surprised, but because it was his case, I agreed.


The presiding judge agreed to our splitting of my time, even though we could not state the breakdown in specific allotments of time. The old fellow began to read every word of the ballot language (all of which was in the brief, of course).  One judge interrupted him as soon as he realized what the older lawyer was doing. The attorney left the podium, took two steps to the bench (where he deposited his papers) and said to the presiding judge, “Will you please allow me to make my argument?” He was apparently referring to being interrupted by a question from one of the other judges. She said that she would and began shifting her notes and briefs away from him. Clearly, he was invading their space.  He stayed there at the bench and proceeded to read the entire ballot, several sections of several chapters of the statutes, and a newspaper editorial. To questions, he twice answered, “Mr. Owens will address that.” One judge said, “Well, I want to hear from Mr. Owens now.” The lawyer said “Okay, Judge. Later.” Finally after using 13 of my 15 minutes, he took his papers off the judges’ bench and sat down.


The presiding judge said, “Mr. Owens, you can have whatever time you need.” (I sensed that she was feeling sorry for me.)  I gave my answers to the three or four questions they had already asked and then sat down.


We lost.


Key words: Appellate practice, oral argument


Dennis Owens is of counsel to DeWitt & Zeldin LLC in Kansas City, Missouri.

This article appears in the Summer 2009 issue of Appellate Practice, the newsletter of the Appellate Practice Committee.

 
Related Resources
  1. Alex Kozinski, The Wrong Stuff, 1992 BYU L. REV. 325 (1992).

 
  • September 14, 2010 – Thanks for the post! Oral skills are very useful when you want to persuade someone.

 

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