Questions You Should Ask Before, and Must Be Able to Answer During, Appellate Oral Argument

As any practitioner knows, there are three stages to an appellate argument: the preparation, the argument, and the aftermath.  This insightful break-out presentation featuring a judicial clerk, a Justice, and an experienced appellate practitioner outlined each stage and highlighted what appellate counsel should consider duing each stage, including things that are often overlooked or forgotten.

Before Argument

In the preparation stage, the universal sentiment from all three presenters was to check the court’s rules before every argument.  For example, post-pandemic, there are often options for remote or hybrid types of oral arguments – so be prepared for the venue to change (such as if the weather becomes an issue) to a remote proceeding and think through the capabilities you have (or may need to obtain) if an oral argument moves to remote.

There are some base-line questions to ask that counsel sometimes overlook. An initial one is ”what does the granting of oral argument mean in this jurisdiction?” Some courts grant oral argument almost every time it is requested while some federal circuits rarely do, therefore, a grant by itself may mean the judges actually have questions. The phrasing of the issue(s) granted can also give insight if issues are identified in advance. Similarly, the practitioner should think about whether this is an intermediate appellate court or higher? For a lower appellate court, the practitioner will want to focus on how the judge did or did not err; but at a higher level, the court will be more focused on the broader rule of law and future implications..

At this early stage, counsel will also want to talk to the clerks’ office to ask basic questions like whether the court is known for hard cut-offs when time expires or whether a grace period might be allowed. Also, collateral questions such as where to park and the best directions: do not rely on simple map software the day of the argument and expect to easily find the parking lots and the individual courtroom. Is the standard courtroom etiquette to wait inside the courtroom before your argument is called or outside? Is rebuttal something you request before or during the argument; indeed, is it even available as some courts do not allow for it?  It was also heavily advised to listen to/watch arguments from the same court (which are often archived online); this is especially true if the decisions you primarily rely on have their arguments available online.

In terms of preparation for the actual argument: keep in mind that judges will have read the briefs, clerk’s summary (if one exists), and often have pulled the primary cases relied on by the briefs, so counsel should know the facts and correct application of the law to the case being argued.  When counsel come in only knowing the headnotes but cannot apply the cases, it often will not go well.  Likewise, everyone should shepardize one more time a few days before argument to ensure there is no new law that has come out that may affect the issues.

Finally, mooting is always a great idea, but the reality is that many counsel do not have an abundance of time and resources; it also depends on the strength of the appellate case. However, talking the issues through with colleagues is a great idea as a different set of eyes can often identify blind spots or arguments that were not considered before.

During Argument

While it may seem simplistic, counsel (especially those who do not routinely do appellate work) should know the standard of review and be able to apply it to the case at bar. Along with that, arguing counsel should be aware of which remedy is being sought (i.e., judgment as a matter of law, a new trial, sentence reassessment, new sentencing case, etc.). Counsel have been known to argue heavily about an error they have identified, but have a hard time articulating how and why it violated the applicable standard of review and what the remedy should be if the court agrees.  Along that same line, waiver versus forfeiture is monumentally important and if counsel just attempt to point out errors, but do not understand if the error was properly preserved, forfeited, or waived, it can backfire. But when it comes to claimed error, counsel needs to specifically state during argument how the lower court erred and if this is a one-off problem or a measured and informed policy that should apply in a broader context.

In cases where the government argues, it is good for both sides to check similar cases and see whether the government is consistent both in policy and the actual issue.  For government counsel, this can severely undermine your position if the appellate court is aware of the government taking a different position on the same issue elsewhere as then it may appear that you are arguing against yourself.  It is not uncommon for a court to ask the government about concessions in other similar cases that are not being made at the current argument.

In terms of what to bring with you, all the practitioners agreed that if the case is about the construction of a statute or a rule, counsel need to have the actual text with them.  If the lower court made a ruling or issued an opinion, that also needs to be available. Although each presenter differed slightly on other items, the focus of all was to ensure you are having a conversation versus trying to lecture or make a “soap box” speech.  The more material brought up, the more likely one is to rummage through pages attempting to find or recite something (often in response to a question asked) instead of just talking through the issue with the judges.

All the presenters raised had a similar point about “right-sizing” the case. This means that there are many things in a brief that are not necessary to decide the case, so the judges may look for concessions/admissions during oral argument and drill down on whether the court needs to address just the first issue or if it could choose to answer the second issue (for example, the error versus just a prejudice analysis). Similarly, counsel need to know what points they can concede if necessary, what failing to concede may do in terms of the reasonableness of the argument, and what hill they have to die on in order to preserve a client’s interest. Counsel will need to know the interplay of the issues and if losing one issue affects the second issue – and if the court can decide only one issue -- why it potentially should decide additional issues.

Finally, everyone should be prepared for softball questions. For better or worse, many appellate courts do not discuss the cases before argument, so the first time they hear the other judges’ opinions is during the argument. Often softball questions are asked in anticipation of how a judicial colleague may think of the case, so counsel should really be listening for softballs as there are countless missed opportunities where a counsel is so argumentative that he/she cannot see a softball and eaily field it.

The Aftermath

Although counsel, clerks, and judges all differ here, one thing that was consistent was asking the question “did anything change?” after the conclusion of the argument.  If so, should the practitioner provide the court with a supplemental citation or file some motion for immediate relief? It is important for counse to talk to the client (or supervisor) shortly after the argument as it is not a good look to get an email at the end of the day asking the question: be proactive.