Information That the Panel Should Know
Never assume that the panel knows the specific relief that you are seeking in your appeal. You don’t want to be caught unprepared if you’re asked what you want the court to do. Even if it seems obvious to you, prepare a short statement of the relief that you seek. It will often be a good final statement to the court. Furthermore, it may help you narrow and improve your argument.
If you have filed important supplemental authorities that were not briefed, be sure to mention them and their legal effect on your argument.
If you are the appellee and the appellant makes a misstatement in her opening argument, make sure that you correct it—in a professional manner, of course. By the same token, if you discover that you made a mistake in your brief, correct it ASAP—preferably by a notice filed well before you approach the podium. Never leave the court with the impression that you are hiding something.
Technological Access to Records and Briefs
More and more, appellate judges are reading on screens instead of on paper, and they often bring tablets to the oral argument. Consequently, they can instantly check a citation you give to the record to see exactly what it says. And they also can contemporaneously pull up a case while you are discussing it and engage you in nuances of the opinion.
This means that you must know in detail the cases you are discussing cold and know in even more detail your record facts. One of our partners was once asked at oral argument about a particular out-of-state case that he had included as part of a long string cite in a footnote for some peripheral point of law. The panel judge had some fun in asking our partner at oral argument why that case was not distinguishable on its facts. Our partner, who had not read the case, looked dumbstruck. All of us in our firm now read, as part of our oral argument preparation, every single case that we cite in our briefs, even if they are only in footnotes.
Dreaded Hard Questions from the Bench
This is undoubtedly the scariest part of appellate oral arguments, no matter how experienced the advocate is. But we actually should all welcome—rather than dread—hard questions from the judges because they tell us what the panel is concerned about and allow us the opportunity to address those concerns. Without questions, you wouldn’t know the concerns until you received the court’s decision.
Always, always respond to a court’s question. Don’t tell the court that it is irrelevant or that you will get to the point later in your argument. I once heard an appellate judge admonish counsel who was avoiding responding to a question, telling him, “I’m the judge, and I get to ask you whatever questions I want.”
What if the questions eat up all of your time and you don’t get to give your prepared presentation? Hopefully, you still will be able to cover all essential points as part of your answers. After all, you presumably have anticipated the hard questions as part of your oral argument preparation.
However, if there is some important point that you were unable to make in light of all the questions you were peppered with, ask the court to give you one or two minutes to sum up your other points—especially if the questions were directed to your weakest points, leaving you insufficient time to make your strongest points. Usually the court will comply (except the U.S. Supreme Court, of course).
What if you get a question for which you are utterly unprepared? It happens to the best of us, usually because we know the case and the particular area of law so well and take it for granted that others will, too.
Bruce Rogow, an experienced U.S. Supreme Court advocate, tells the story of being mooted for an argument to that court by his first-year law school class on constitutional law. One of his students asked a question that Rogow thought was “the dumbest question” he had ever heard. But when Chief Justice Warren Burger asked Rogow that same question at the actual oral argument, Rogow was ready with the answer.
This is not an outlier story. That is why such mock arguments are so helpful. The mock judges do not know the case as well as the advocate does, so they are more in the posture of the real judges in that respect. Always listen carefully to what your mock judges say, especially concerning any of your points that confuse them. They will help you better understand your case’s weaknesses and prepare you to correct misunderstandings that the panel may have and that your opponent is sure to exploit.
Even with the best possible preparation, though, you may get a question you just don’t know how to answer. It is always better to own up rather than try to answer and possibly hurt your credibility.
Most courts will allow you to submit a short written response after the argument, but you usually have to ask for leave to do so. Indeed, some courts have local rules allowing that. Other courts allow that as a matter of local custom. If you are arguing outside your usual forum, find out the policies and customs of your court before your argument.
What if a question requires you to go outside the record? Explain that this is the case before answering, and make sure that the court still wants the answer. In our experience, the court nearly always directs counsel to answer nonetheless, but approaching it in this manner retains your credibility and precludes attack from your opponent suggesting that you improperly sought to inject extra-record matters into the argument. And if you truly don’t know the answer, “I don’t know, and it is not in the record” is an acceptable answer.
When you are answering questions at the argument, keep in mind that some may be “softball” questions by a judge seeking to persuade a colleague to your point of view. Take that opportunity to guide the panel to understanding your position, which the questioning judge has just framed for you.
On the other hand, you may get a hardball question, which should alert you to the judge’s concerns. And sometimes there is a truly hostile judge who doesn’t want to hear anything you have to say. What then?
First and foremost, don’t give in to that judge. There are others on the panel whom you may be able to persuade. Sometimes another judge will intervene and allow you to get back on track—seize that opportunity. If that doesn’t happen, politely respond to the hostile judge that you understand the points she is making but disagree for reasons set forth in your brief and that now you want to move on to other points in your argument.
What should you do when you get nailed by the judges on some bad fact or case? Presumably, you dealt with it in your briefs, or at least anticipated it as a likely subject of questioning. So, instead of shying away from it, confront it and explain why it doesn’t change the outcome that you seek.
This is perhaps the most important takeaway from this article, a point that could support an entire article by itself: you cannot stick your head in the sand and ignore your weak points. If you don’t have convincing and credible answers to hard questions stemming from your argument, you probably should not be making that argument at all.
If that argument is all that you have, however, obviously you must articulate the best response that you can—even if it is a “Yes, but . . .”. If you know your position will be an uphill battle at oral argument, consider using your colleagues as a sounding board ahead of time to refine your points. You’d be surprised what helpful perspective a cold audience can have.
A final word of advice: The most effective appellate oral argument is a conversation with the court. Its questions and your answers should be taken in that light. Your argument never should be acrimonious, no matter how much you may be fuming inside. Silence for a precious minute can allow you to collect your thoughts and move on gracefully.
Use of Humor
Should you use humor? Never say “never”—but almost never. And if you do use gentle humor, make sure that neither the other side nor the court is the punchline of the joke.
One good example played out at an argument that we watched. Seeking a reversal, an appellant argued that an affirming opinion would contradict existing law, and so the panel should draft one, which exercise counsel contended would demonstrate that the trial court’s analysis was incorrect. When the appellee got up, the court asked how an affirming opinion would address the issue while remaining consistent with existing law.
The litigant responded, “We think the best opinion would be three words long,” obviously referring to a per curiam affirmance—and eliciting a laugh from both the panel and appellant’s counsel. The attorney then continued by explaining what an affirming opinion would look like and why it would not be inconsistent with the law. That approach addressed the issue without putting anybody down, advancing both the client’s interests and counsel’s credibility.
Walbolt, this article’s senior author was once arguing on behalf of an employer accused of discrimination in terminating an employee during a reduction in force. In response to a question from the bench, she quietly observed that there were four people in the employee’s department—an African American, a woman, a male over the age of 40, and a handicapped individual—and, consequently, any termination within that department necessarily would have been of a person in a protected class. The bench smiled as they took the point and ultimately held in the employer’s favor.
Best Practices for Rebuttals
The best rebuttals are short but powerful. So, when you are the appellant, keep your rebuttal quick and confined to responding to your opponent’s most convincing points.
It is often a good idea to frame your rebuttal for the court as soon as you stand up. Consider, for example, alerting the court immediately upon retaking the podium that you “want to make three points” and then moving quickly through your response. This gives the panel a road map and, particularly if you are running out of time, makes it more likely that the judges will let you get your points out. Just make sure that you stick to your road map—detours may be dangerous!
Be sure to address any key questions asked of the other side, and provide your response to them. The result of the appeal may well rest on how the judges view the different responses to those questions.
Finally, if you are the appellee, don’t simply tune out during rebuttal just because your turn at the podium is over. Listen to the appellant’s counsel, and if she raises an issue not previously covered during the argument—particularly if it is outside the briefing—consider whether to ask the panel for leave to briefly respond. Even if you aren’t prepared to orally argue a new issue on the spot, you can request leave to submit a very short written response before the close of business the next day.
Oral arguments almost never go exactly as anticipated. That is what makes them so challenging and why many lawyers think that the oral argument is the best part of appellate advocacy.
But this also means that you often cannot be sure how the panel is going to rule when you leave the courtroom. Some judges are known to make their intentions pretty clear during the argument, but sometimes judges are just testing their preliminary thoughts and, despite battering and bruising you, end up accepting your argument. Thus, although you may need to tell the client that the argument did not go well, you also need to explain that does not necessarily mean the client will not prevail in the end. By the same token, however, make sure to manage client expectations after an argument that seemed by all accounts to go flawlessly. Even if you correctly perceived that the panel accepted your arguments in the courtroom, the judges can always change their minds—even after putting together a first draft of an opinion that goes your way.
So, you just never know about an appellate oral argument. Just do your best in the time you have to prepare—hopefully, more than 48 hours—and place your trust in the court.
Sylvia H. Walbolt is a shareholder and Nick A. Brown is an associate at Carlton Fields in Tampa, Florida.