While you should obviously prepare for an oral argument, you shouldn’t over-prepare. Re-reading the record and the cases cited in the briefs is a waste of time, even counterproductive. You need to leave yourself a certain amount of (how shall I put it?) “flexibility” in answering questions at oral argument. The facts and the law will only weigh you down. If you can’t answer a question off the top of your head about something that happened in the trial court, it probably wasn’t important anyway. Just confidently answer the question the best you can, preferably with something you think the judges want to hear, and move on. Better to do this than to tell the court you don’t know the answer. You’ll look like a dunce if you admit your ignorance, and, besides, if the court catches you in a half-truth, you can just turn the situation to your advantage by admitting you must be “mistaken.” This gives you the appearance of forthrightness. As Mark Twain said, “A man is never more truthful than when he acknowledges himself a liar.”
One thing in particular that you shouldn’t worry about as you prepare for an argument in federal court is subject matter jurisdiction. If the case has gone as far as oral argument, you can assume jurisdiction exists. Federal appellate judges could care less about this procedural nuance.
Nor should you attempt to anticipate the questions you’ll get at oral argument, but if you do engage in this fruitless thought experiment, you should concern yourself with the answers you might give in response to those questions. Rarely will you get a hot bench. This is for two reasons. The first is that the judges want to give you plenty of time to talk about what you want to talk about. Oral argument is not about giving the court the opportunity to engage you in dialogue about the case or about having the chance to test the limits of a proposed rule or holding or even about clarifying certain facts and legal arguments. Oral argument is about giving you, the advocate, the opportunity to recap, rehash, and repeat what you wrote in your briefs.
Therefore, if you’re inclined to practice your argument at all, don’t bother mooting it. Simply script your argument, making liberal use of excerpts from your briefs, and practice reading it in a stentorian voice. Learn to use grandiose hand gestures. And purchase some reading glasses even if you don’t need them. This little affectation gives lawyers, especially young lawyers, a look of erudition and experience.
In the interest of full disclosure, I should point out that some lawyers do think it is a good idea to moot cases with other lawyers, particularly those who do not specialize in the area of law at issue. Appellate judges are by and large generalists, and they may not necessarily be expert in, say, the law governing reinsurance contracts. And so, the theory is that you need to be prepared to plainly communicate your ideas and thoughts to an intelligent but non-specialist court. Balderdash! The court will think you don’t know what you’re talking about if you don’t speak the lingo. So, lard your script with all of the specialist jargon you can muster, as you no doubt have done already in your briefs.
Which brings me to the second reason appellate court judges are typically so reserved at oral arguments: They never read the briefs beforehand. Judges believe doing so would only bias them. It would be like reading a movie review that gives away the ending. This makes appellate judges naturally more inclined to give you ample uninterrupted time to talk about your case. An extended recitation of the facts with pinpoint citations to the record is thus always advisable. Do not just jump in and get to the point. Start with the complaint or indictment and chronologically retrace the background of the case, both factual and procedural. I have never seen an appellate court judge get impatient when a lawyer has tried to do this in the past.
But before getting into the facts, you’ve got to start with a big, bold introduction. The introduction is your opportunity to shine, to show off your oratorical skills. So, begin with something sensational—over the top, even. Think Ringling Brothers and the Royal Shakespeare Company all rolled up into one. I once heard an oral argument in a sexual harassment case where the plaintiff’s counsel started off by quoting what purported to be the alleged harasser’s own words: “What color is your bra? Does it match your panties?” At which point Judge Rover asked counsel, “Are you speaking to Judge Posner?” (If you didn’t know, Judge Posner happens to be a man.) The courtroom erupted in laughter, which is not exactly the reaction plaintiff’s counsel had probably hoped to elicit, but so be it. The gimmick got the court’s attention, and that’s really all that matters.
Now, let’s pause here and take a moment to discuss some of the more mundane aspects of oral argument. What, for example, should you bring with you to the podium? Some lawyers tote a neatly organized three-ring binder or a manila folder with one sheet of bulleted notes on either side. I guess that’s all right. I learned in high school debate to use three-by-five-inch index cards. Thumbing through a stack of note cards like David Letterman doing the Top Ten is far more professional, in my opinion. Or, better yet, you might just carry a sheaf of loose-leaf papers. I once saw a very nervous lawyer drop what appeared to have been a ream of paper on his way to the podium. The paper scattered in every direction—upside down, right side up, all over, and out of order. The judges just stared at him in horror as he fumbled around trying to scrape his notes (and his dignity) off of the floor. The gallery murmured. The clerks smirked. But while others may have viewed this fine lawyer with bemusement, I knew better; whether he knew it or not, he was on to something. If you look incompetent, you improve your chances of success. Judges pity bumbling lawyers.
Another way to invoke pity is by proper handling of exhibits, as this same lawyer demonstrated. It was an intellectual property case, and he wanted to show how the defendant had copied certain aspects of his client’s product. So, he had pictures of the competing products blown up and placed side by side on a poster board. Good idea. The “problem” was that when he went to put the poster board on the easel, it tipped over. He tried to get the exhibit to stay put three or four times, but each time it flopped forward, until finally his associate got up to help. She got the exhibit to stick. You might think the lawyer should have had his associate handle the poster board from the start, particularly because he was so nervous. But his was the sounder strategy by far. Courts want to help the hopeless, and he looked hopeless indeed.
Once you get past your opening and have established the proper tone, slow down, let the court catch its breath, and then read your argument—deliberately, ploddingly, word for word. Do not engage the court in a discussion. Regard questions as interruptions. This is your show, your time. So, there is no need to make eye contact with the judges. Avoiding eye contact has the happy advantage of not only discouraging questions from the bench but also of signaling proper deference. Judges respect lawyers who are obsequious. So, reinforce your visible obsequiousness with verbal obsequiousness. Tell the court, for example, how wonderful it is to appear before it. Or, if you are lucky enough to have the author of a key decision on your panel, remind the judge of that fact and mention what an incisive, groundbreaking case it is.
If the court does ask questions (which, again, is unlikely), inform the court that you will be deferring your answers until the end of your presentation. It is far more important that you finish your prepared remarks than it is to satisfy the court’s idle curiosity.
If you get a hypothetical question, preface your answer with the following words: “Those aren’t my facts.” Hypotheticals are often a sign of confusion borne out of a lack of knowledge. So, take hypotheticals as an opportunity to clarify the court’s obvious misperceptions about your case.
Then transition into a ponderous dissection of case law, discussing the facts and holdings of each key opinion. Quote liberally from precedent. And don’t forget to give the court a citation for each case that you discuss. Watch as the judges furiously record everything you say. You want their notepads to look like a table of authorities by the time argument is over.
Know that all questions are hostile. Never will a judge intentionally throw you a softball. Every question is a curveball. If you sense the question is friendly, you’re wrong. So, watch out.
I have seen some lawyers make the mistake of answering questions directly. One technique, odd though it may be, is to respond to a yes or no question with “yes” or “no,” and then, if necessary, to elaborate on the answer. That technique is for suckers. There’s no need to hurry. Let the answer unfold like a good novel. Keep the judges in suspense. The court will listen patiently as it wonders whether you are answering the question that was asked.
Sometimes questions are designed to elicit concessions. Never, ever concede anything. If you’ve come to the argument minimally prepared, as I have suggested you should, you likely won’t know enough about your case to discern whether something can be conceded or not. So, it’s just better not to concede anything at all. I recently observed an oral argument where the court had a question about some testimony in the trial court record. Counsel couldn’t remember the testimony, and so after some stumbling on his part, one of the judges flipped to where it was in the appendix and read it to the lawyer. “Isn’t that what your own client said?” the judge asked. The lawyer wisely refused to acknowledge straightforwardly that the judge was quoting from the actual language of the transcript. “Well, if that’s what you say my client said, then I guess I’ll have to take your word for it,” the lawyer responded with not a little skepticism. Attaboy! For all the lawyer knew, the judge could have been trying to pull a fast one on him. Concede nothing!
Finally, a word about rebuttal. The key here is to be exhaustive. Don’t limit yourself to two or three critical points. Rebut every one of your opponent’s arguments seriatim. And do so even if it’s clear the court is in your corner. If this takes more time than you have left, don’t sweat it: Ignore the red light and take all the time you need. The allotted time for argument is merely a suggestion. The court will appreciate your thoroughness.
I could go on, but you can learn only so much about oral argument by reading about it; you must actually put these principles into practice. That is why I offer private, one-on-one tutoring sessions. Mention this article the next time we are on opposite sides of an appeal and I will provide one complimentary lesson tailored to our case. What do you have to lose?
Keywords: litigation, appellate practice, oral argument, oratory, tone, rebuttal
Brian J. Paul is a partner in the appellate practice group of Ice Miller LLP in Indianapolis, Indiana.