November 28, 2018 Articles

    Splitting Oral Argument: Avoiding Misadventures in Division

    The admonition against dividing argument is almost universal.

    By Eric Caugh

    A few months back, an appellate lawyer shared on Twitter that he was listening to the audio recording of oral argument where four appellants divided 30 minutes of argument amongst them. In the ensuing discussion, most responses ranged from mild criticism to outright shock and dismay. But the entire discussion got me thinking about why most judges and commentators advise against dividing oral argument and under what circumstances splitting an argument might be acceptable.

    Consensus Against Splits

    The admonition against dividing argument is almost universal. Courts routinely advise against it:

    • Only “one counsel may argue for each party unless the court orders otherwise.” Second Cir. R. 34.1.
    • The “court may—in exceptional circumstances—permit divided arguments.” Sixth Cir. R. 34(g)(2).
    • “Divided arguments on behalf of a single party or multiple parties with the same interests are not favored by the court.” Seventh Cir. R. 34(c).
    • The Eighth Circuit “discourages” dividing argument time. Eighth Cir. IOP, III.K.5.

    So, too, practitioners and commentators:

    • “[A]s a general rule, counsel should not divide argument.” Steven D. Merryday, Oral Argument § 23.11, in Florida Appellate Practice (10th ed. 2017).
    • “Avoid splitting the argument between cocounsel.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 148 (Thomson West 2008).

    Perhaps the strongest admonition against dividing oral argument came from Chief Justice Walter V. Schaefer of the Illinois Supreme Court when he addressed the annual convention of the Tennessee Bar Association in 1954. He said, “Don’t do it! Far better to suffer the pains of the silent advocate and the wear and tear on the seat of your pants while you are sitting there as he butchers your case. Much better than to divide your time.” Schaefer, Appellate Advocacy, 23 Tenn. L. Rev. 471, 473 (1954).

    But why? Why should attorneys risk “suffer[ing] the pains of the silent advocate” while watching as another lawyer “butchers your case” at oral argument? Answering this question guides the determination of when it may be acceptable to split argument and how to best go about handling the division.

    Cons

    From a practical standpoint, divvying up your time is inefficient. At the outset, counsel must explain how and why they are dividing the argument and how their shared time is to be allocated. The physical act of counsel switching spots between counsel’s table and the lectern is time-consuming, not to mention distracting. Finally, each counsel may need time to work through his nerves and get into the rhythm of the discussion with the panel. With some courts already severely limiting the amount of time afforded to each side, the downside of burning time on the added mechanics of a fragmented presentation must be outweighed by any perceived upside to spreading the speaking role among several lawyers.

    Partitioning an argument is also ineffective and risks weakening your message. Issues and facts are not always neatly divisible. For that reason, “[w]hen two lawyers undertake to share a single presentation, their two arguments at best will be somewhat overlapping, repetitious and incomplete and, at worst, contradictory, inconsistent and confusing.” Robert H. Jackson, Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A. J. 801, 802 (1951).

    But the biggest risk in dividing an oral argument is that it might frustrate the judges on the panel and get in the way of a dialogue that will help the court reach the correct decision. If the law and facts do not align with the division selected by counsel, it is not reasonable to ask a court to honor the division and limit questioning to the appropriate lawyer.

    Even where the issues on appeal are readily divisible, there is no guarantee that the panel will honor a division of argument by counsel. There is nothing that prevents a judge from asking the first lawyer about the issues set aside for the second lawyer and vice versa. Indeed, some judges have a “perverse instinct” for putting questions to the other lawyer:

    Judges of reviewing courts have a highly developed perverse instinct for putting the questions to the other lawyer. If you divide your time you are talking facts, your colleague is talking law; inevitably I say, while you are talking facts the judges will manifest the most amazing curiosity about the law, and while your associate is discussing the propositions of law they will have an insatiable curiosity about the facts, and I have never seen it fail.

    Schaefer, supra, at 473.

    Justice Jackson experienced this problem himself when he was an advocate:

    I recall one misadventure in division in which I was to open the case and expound the statute involved, while counsel for a government agency was to follow and explain the agency’s regulations. This seemed a natural place to sunder the argument. But the Court perversely refused to honor the division. So long as I was on my feet, the Justices were intensely interested in the regulations, which I had not expected to discuss. By the time my associate took over, they had developed a lively interest in the statute, which was not his part of the case.

    Jackson, supra, at 802. Based on this experience, Justice Jackson concluded, “No counsel should be permitted to take the floor in any case who is not willing to master and able to present every aspect of it.” Id.

    The risks of questions from the bench coming “out of turn” are several. First, it is not good advocacy to tell a judge that the answer to the question that is currently on the judge’s mind will come at some point later in the argument. And if this does happen, the lawyer not currently arguing better remember the question and provide an answer. Second, if an attorney gets a question on an issue not within his assigned portion of the argument and decides to answer it, there is a risk that the lawyer will provide an incorrect or incomplete answer or an answer that is inconsistent with some portion of the next lawyer’s argument.

    Pros

    So, when is division advisable? For starters, when more than one party is involved on either side of the appeal and the parties’ interests do not perfectly align, division is not only permissible—it could be required by the circumstances. Even then, however, the division should be limited solely to the issue on which the interests are not fully aligned, and the remaining issues should be argued by one attorney.

    When interests are aligned among multiple parties on the same side of the appeal, division may be acceptable where the issues involved are truly divisible and where the particular knowledge and expertise of counsel warrant splitting the argument in order to aid the court. For example, if there is a standing issue that is independent of the merits of the remaining issues, it may be advisable to have an attorney with unique subject-matter expertise on standing argue the standing issue. Similarly, where one issue is uniquely dependent upon factual minutiae, having counsel most familiar with the record address that issue may make the most sense.

    Guidelines

    As with so much of legal practice, there are few hard-and-fast rules about splitting an oral argument. However, the criticisms about divided arguments discussed above suggest some broad guidelines worth considering when contemplating whether to share an argument among multiple counsel:

    • Have a good reason for the split. Have a good reason for dividing the argument. Having the subject-matter expert on a discrete area of law argue on just that issue might be a sufficient reason for dividing the argument. (Spoiler alert: A lawyer’s ego is not a sufficient reason.) Even when you think that you have a good reason, reanalyze all of the potential risks that dividing the argument could present, and make sure that dividing the argument is the best approach for your client and for the court.
    • Make the division sensible. Make sure that the division of issues is clean and makes sense. Do not divide a single issue between multiple counsel. In one argument before the Fifth Circuit, counsel for the appellee planned to divide aspects of a single issue—the unconscionability of a contract—between two attorneys. One judge on the panel commented that a split of that nature was “not very helpful, but it’s your argument.” Oral Argument at 17:05, Campbell Harrison & Dagley, L.L.P. v. Hill, 782 F.3d 240 (5th Cir. 2015) (No. 14-10631). In that case, when the court noted that the first attorney was approaching the halfway point of the allotted time, the other attorney indicated that the first attorney should continue with the argument, and the first attorney ultimately argued the entire appeal on behalf of the appellee. Id. at 27:00.
    • Follow the proper procedure. Many courts do not permit counsel to divide an argument without permission of the court. Consult the court’s local rules and internal operating procedures to make sure that you meet all deadlines and obtain the necessary approval to divide time.
    • Communicate with the court. Explain to the court at the beginning of the argument why you are dividing the argument and how you want to allocate your time. This will help to set expectations and hopefully encourage the court to honor the division. The lawyers in the argument mentioned at the beginning of this article did not explain how they wanted to allocate their time, which led one judge to preface his first question with this comment: “We don’t know how much time we have you . . .”
    • Honor time limits. One of the biggest problems with dividing oral argument is honoring the allocation of time between counsel. When counsel divide an argument, courts often expect counsel to enforce their own time division. The attorney who goes first must be especially cognizant of time and not usurp all of the time for the entire argument on just his issues.
    • Be prepared. Regardless of why and how counsel divide an argument, all counsel arguing should be prepared to respond to questions on any issue. This is especially true for the last counsel in the lineup, who needs to be prepared to bat cleanup in case a question is asked about an issue addressed by a preceding attorney.

    Conclusion

    Dividing appellate oral argument among multiple attorneys is not recommended. It can be inefficient and ineffective and risk frustrating the court. However, under certain limited circumstances, counsel may find that these risks are outweighed by splitting the argument in a way that makes sense and will aid the court in a way that cannot be accomplished with just one attorney arguing the entire matter. In that case, counsel should follow the guidelines described above to make sure that the division does, in fact, aid the court without undercutting their client’s interests.

    Eric Caugh is a partner in the Minneapolis, Minnesota, office of Zelle LLP.

    Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).