Close your eyes and imagine standing behind the lectern at the Supreme Court of the United States delivering an oral argument. You have begun your argument when you are interrupted by Justice Stephen Breyer asking one of his typical hypothetical questions. How do you react? Do you (1) freeze, (2) respond by saying “that’s not our case, your Honor,” or (3) listen closely to the question and attempt to use the hypothetical to your advantage in some way?
Although you may not be arguing at the Supreme Court of the United States any time soon, hypothetical questions are a staple of any appellate argument. You certainly don’t want to freeze. And most appellate advocates know a judge will not be satisfied—and probably will be turned off—if you don’t answer the question. But how do you turn the hypo into an advantageous point for your argument? This and other high-level tips for answering oral argument questions were addressed in a breakout session at the 2021 AJEI Summit.
The panel discussion was moderated by Justice Beth Watkins of the Texas Fourth District Court of Appeals located in San Antonio, Texas. The panel members were Joshua B. Carpenter, Appellate Chief of the Federal Public Defender’s Office in Asheville, North Carolina; Judge James Earl Graves, Jr., of the United States Court of Appeals for the Fifth Circuit; and Allyson N. Ho, a partner in the Dallas office of Gibson, Dunn & Crutcher, LLP.
The panel began its presentation by showing a clip from The Castle, a 1997 Australian comedic film about a family fighting the potential loss of their home through eminent domain. In the clip, an attorney is arguing on the family’s behalf before the High Court of Australia. Unfortunately for the attorney, each of his answers to a judge’s questions leads to the judge asking a more difficult question for which the attorney is unprepared. Hilarity ensues.
Watching the clip was a great lead-in to the panel’s discussion as it was painfully obvious that no one attending this session wanted to be the unprepared attorney in the film. Proceeding to discuss how to prepare for argument questions, how to embrace questions, and what not to do as an oral advocate, the distinguished panelists shared their various experiences either as an appellate litigator or jurist.
Emphasizing that an appellate argument is merely a conversation with the judges, the panelists reiterated the usual preparation advice: anticipating questions; formulating answers to those questions; and participating in moot courts. Additionally, the panel outlined several advanced preparation techniques.
- Know your audience. Ms. Ho, an expert oral advocate who has argued at the Supreme Court of the United States and numerous other appellate courts, advised attendees to have detailed knowledge of the panel of judges. Because some appellate courts do not reveal the panel that will hear a case until the day of the argument, that is not always possible. But when the advocate does know the panel in advance, it is good to know more than just the judges’ biographies. It is important also to know if any members of the panel authored any of the cases cited in the parties’ briefs and to know something about the other cases being argued before the panel.
- Be ready for no questions as well as many questions. Judge Graves noted that many advocates prepare only for a hot bench. But it’s also possible in many courts that your panel will ask few, if any, questions. The panel agreed that having a cold bench often is much more difficult to navigate than arguing before a hot bench, so it is important to be ready to handle an argument with no questions.
- Turn potential questions into affirmative points. Mr. Carpenter, an experienced appellate advocate who also has argued at the Supreme Court of the United States, told the group that it is a good idea to figure out the two or three hardest questions you think you will receive and turn them into positive points to make in your argument before the questions can be asked. This will dispel many of the judges’ concerns about your position, potentially short-circuit some of the questioning, and often impress the court.
- Anticipate follow-ups. Mr. Carpenter further advised that in addition to anticipating questions from the court, an advocate should think about what follow-up questions are likely to be asked in response to your answers. This will help prevent you from being like the befuddled and bumbling attorney in The Castle.
- Know the remedy you are seeking. The panelists agreed that the remedy drives the argument. The court will want to know what remedy you want; don’t neglect this important part of the argument as it should guide your entire argument and is likely to be the subject of questions from the court.
After discussing preparedness, the panel played an audio clip from the Second Circuit case of Doyle v. Palmer. In what may top the previous king of how-not-to-do-it oral arguments (the well-known argument in the Seventh Circuit case of United States v. Johnson), the argument in Doyle featured the removal of an attorney from the courtroom after one of the judges referred to the attorney’s actions as “disrespectful and discourteous” and after the attorney apparently refused to leave when informed that he had waived rebuttal.
Following up on the bad example exhibited in Doyle, the panel moved to a discussion of how attitude plays an important part of mastering oral argument. Part of having the proper attitude is to embrace questions rather than to fear them. To that end, the panel made several points.
- Contrary to what you may have heard, every question is a “friendly question.” It may not feel this way when you are being grilled during oral argument, but Ms. Ho voiced her opinion that every advocate should welcome the hard questions in order to put to rest any concerns the court may have. Without those questions, it sometimes is difficult to know what aspects of your argument are troubling to the court.
- Be a good listener. The panelists agreed that being a good listener makes for a good oral advocate. Attorneys should answer the question that is asked because, as Judge Graves stated, nothing ticks off a judge more than an attorney that doesn’t answer the question asked.
The panel then played another audio clip of an oral argument. This time the argument, in the Eighth Circuit case of Padden Law Firm v. Trice, was extolled as a good example of an attorney transitioning from a question back into his argument. Mr. Carpenter explained that the best way to do this is to answer the specific question, take a deep breath, and then move back to the argument.
Sometimes knowing what not to do during oral argument is as important as knowing what to do. The panel made observations about what should be avoided during argument.
- Don’t fight the hypotheticals. The panelists agreed that it is exceedingly difficult to prepare for hypotheticals. They advised that advocates, in answering a hypothetical question, should focus on principles, themes, and distinctions. Advocates shouldn’t fight hypotheticals so long as they don’t concede away their case. Sometimes, Ms. Ho stated, it can be beneficial to prepare by developing a hypothetical of your own that would help your side. As an example of a series of difficult hypotheticals that seemed never to end, the panel played an audio clip of Justice Alito haranguing an attorney in Minnesota v. Mansky.
- Don’t make up an answer. This one probably goes without saying, but in the heat of the moment it can happen, just as it did for the attorney in The Castle. The panel played a video clip, this one from a remote argument in the Supreme Court of Georgia case of ACLU v. Zeh, to make the point that an advocate should not “guess” at an answer to a question from an appellate court. Undoubtedly, the court is going to ask about the basis for your answer. You should have one.
- Don’t plead ignorance. Judge Graves noted that judges don’t want to hear from an advocate that he or she “didn’t try the case” or “didn’t write the brief.” Know the record well but answer honestly if you don’t know something in the record. You can always offer to find the answer and write a letter to the court with an answer. Or perhaps you can even find the answer before rebuttal if you are representing the appellant.
- Don’t be discouraged by a judge that won’t let something go. Even if a judge will not let up from a certain line of questioning, Mr. Carpenter emphasized not to be disheartened because other judges on the panel may not agree with that judge’s perspective. Judge Graves suggested that you could even be rescued by one of the other judges, but you should always remain respectful no matter what. Ms. Ho felt that judges sometimes are engaging in a conversation among themselves and may be trying to get an answer to help persuade the other judges.
- Don’t let a judge’s misunderstanding about the record go uncorrected. The panelists agreed that an advocate cannot let a mistaken impression about the record go uncorrected. An arguing attorney should respectfully correct any mistake by disarmingly informing the court that the advocate may have been less than clear. In that way, the advocate redirects the error upon himself or herself.
Although the robust discussion left very little time, the panel concluded the session by briefly addressing virtual arguments in the age of Covid. The panelists’ conclusion was simple: Zoom arguments, in the end, aren’t that much different from in-person arguments. The tips for live arguments generally work just as well for remote ones.
Ultimately, the panel’s discussion of advanced tips for answering oral argument questions had a little something for everyone. For inexperienced oralists, the panel’s advice included the sound foundation for becoming better oral advocates. For seasoned appellate advocates, the guidance included nuggets of advanced techniques to consider and implement in future arguments. For either group, the message was clear that you will do fine if you prepare for, listen closely to, embrace, and directly answer the Justice Breyer-style hypothetical that will most assuredly come your way.