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September 03, 2014 Article

Preparing for Your First Appellate Oral Argument: A Practical Primer

One thing judges hate is a lack of preparedness

by Nicholas P. Shapiro

In my first three years of practice, I have had the somewhat unusual privilege of arguing two appeals before the Massachusetts Appeals Court. As you might expect, it was often intimidating and not always smooth sailing. But the benefits of that experience prompt me to encourage even relatively new attorneys to look for those opportunities and not to be afraid to seize them when they appear—and not to just assume the more senior lawyer should argue the case on appeal. The purpose of this article is to provide more junior attorneys with practical tips and insight into the process of preparing for an appellate oral argument.

Know Your Court

Before joining my current law firm, I worked as a law clerk for an associate justice of the Massachusetts Appeals Court, the very appellate court before which I would first argue. This background gave me critical insight into the process. For example, I came to know that the court is composed of 24 associate justices, one chief justice, and one recall justice; how a case is selected for oral argument; that, if a case is selected for oral argument, it will be assigned for hearing before a three-judge panel; and that each hearing typically consists of three criminal cases, which are heard first, followed by three civil cases, heard last. But one can figure this out without clerking for the court. There are numerous resources through which one can find this information. These resources include the court’s own website, rules and standing orders, list serves, chat rooms and blogs, and colleagues who have either worked at a given court or have significant experience practicing before it.

Consulting these resources is vital to feeling as comfortable as possible with the process—which is particularly important for newer attorneys who are apt to feel as if everyone else has a greater handle on what is going on than they do—and to providing the context necessary to fine-tune your appellate advocacy. The junior practitioner should try to find the answer to a number of questions on this score, including the following:

  • How does the appellate court conduct an initial screening process of appeals? Does it rely on staff attorneys in this regard?
  • Do the court’s staff attorneys have particular areas of expertise?
  • How does an appeal get selected for oral argument?
  • Once selected for oral argument, who hears the appeal? The entire court? Or a panel of the court?
  • If a panel of the court will hear the appeal, who will be assigned the task of writing a decision?
  • Is the decision made by the whole court, notwithstanding that it was only a panel of the same who heard the case?
  • Does the rest of the court review the panel’s decision?
  • Does the court’s rules provide for summary decisions? Do summary decisions have precedential value? If so, for whom?
  • What is the court’s role in that state’s judiciary? Is it an intermediate appellate court? Is it the state’s high court?
  • What is the court’s jurisdiction? Is it an appellate court of specialized jurisdiction?

The answers to these questions all factor prominently in knowing your audience, which may not be static or unitary, but knowing your audience is essential to maximizing the effectiveness of your arguments.

Know Your Panel

The judges appointed and elected to appellate courts come from all walks of the legal community, from the state and federal judiciary, attorneys general offices, executive branches, U.S. and district attorneys’ and public defenders’ offices, white-shoe law firms, and solo practices. This broad pool of different legal backgrounds equates with a similar breadth of diversity of personal backgrounds, experiences, and cultures. Basically, a young appellate practitioner cannot make any assumptions about the perspectives brought to oral argument by an appellate panel. Once it has been assigned and noticed, you must research your panel.

Research the legal backgrounds of the justices. If a justice has a criminal background and you are arguing an obscure area of zoning law, then you may need to draw the camera frame back and provide greater legal context for your argument. Determine how long a judge has been on the (appellate) bench. Even if a judge’s prior experience was in prosecuting criminals, he or she may have spent sufficient time on the bench to have developed knowledge and expertise beyond that background, and thus the added context may not be necessary. In particular, when reviewing the law for oral argument, keep one eye trained on the jurisprudence of the panelists before whom you will argue. Identify whether any of them have written decisions in the area of your case. Even if they are not on point, attempt to glean whether those decisions betray an orientation toward or against your position. Judges like to be consistent with themselves and appreciate an attorney who has taken the time to review and then cites their jurisprudence.

Although a certain amount may be inferred from judges’ decisions, it is perilous to draw inferences from judges’ personal, religious, ethnic, racial, or cultural backgrounds. Cases are like Rorschach tests for judges, and we advocates should not fall into the trap of attempting to forecast too precisely what judges will see, lest we get caught flat-footed by an unexpected reaction. A judge’s group identity is almost never a proxy for how he or she will react to a case or controversy. Judges—people—are too complex.

Nevertheless, one personal aspect of each judge should be ascertained, if possible, to fully prepare for oral argument: Does he or she present a “hot bench”? If so, be prepared for a lively debate and jettison any notion that you will permitted to provide a structured, comprehensive, and continuous presentation of your case. You will want to rehearse such a presentation in any event to help organize your thoughts for the battery of questions you will receive, but you will not have the chance to make that presentation at hearing. But not all appellate judges are so inquisitive. If your research discloses that a panel is composed more of mild-mannered jurists, then plan for and prepare a more structured presentation.

Know Your Cases

One thing judges hate—whether on the district, superior, or appellate court—is a lack of preparedness. On appeal, what matters most is the law. Even findings of fact are reviewed on appeal to determine whether the judge or jury had, as a matter of law, adequate evidence to sustain those findings, i.e., even the review of facts on appeal is itself a legal exercise and appellate courts do not make factual findings. Thus, after you have reviewed the appeal briefs, as well as researched the court and panel, the next step of preparation should be reviewing the cases cited in your and opposing counsel’s briefs. I would recommend memorizing the facts and holdings of the key decisions, both pro and con to your position, as much as possible. When an issue on appeal presents a line of decisions, I have found it particularly helpful to prepare a table of those cases, complete with abbreviated facts, holdings, and reasoning, to aid my memorization. In this vein, you will likely be asked to identify “your best case for that proposition,” and you will be expected to speak intelligently even to the granular detail of the cases cited and how your case and those cases are distinguished from each other.

Know the Standard of Review

On day one of my time at the Massachusetts Appeals Court, my class of law clerks had a workshop with a staff attorney about the various standards of appellate review applicable in the broad array of cases heard by the court. Although the court addresses seemingly boundless areas of substantive law, there are only about 10 standards of review. But, as the staff attorney exhorted, those standards are the most important legal principles at work at an appellate court because they bear directly on the day-to-day business of the court. Regardless of the underlying substantive law, whether a trial judge’s decision or action is subject to de novo review, an abuse of discretion, or clearly erroneous standard can make all of the difference in the success or failure of a claim on appeal. Appellate judges will expect the appellate litigator to know the relevant standard of review and to be able to connect his or her substantive legal argument back to that standard. Likewise, if opposing counsel does not know the applicable standard of review or has ducked the same, you must skewer him or her with it. The standard of review is always the lodestar of the legal analysis on appeal.

Know Your Factual Record

You must know the facts of your case. Period. There is no substitute or hiding from that basic reality. Facility with the facts is particularly important in cases where you are advancing a claim that a judge’s findings are clearly erroneous, a jury verdict flunked the judgment notwithstanding the verdict standard, or an administrative quasi-judicial body lacked substantial evidence for its decision. As voluminous as a record might be, the judges on the panel will review it. So you must be prepared for, say, a question concerning the findings of a traffic study that there would be longer queuing in a particular turn lane after your client’s project is developed, even if that issue was not cited by the local board as a rationale for its decision about traffic.

Know the Weaknesses of Your Case and Arguments

This lesson can be the most challenging task in preparing for an appeal. In being a zealous advocate, it can be exceedingly difficult to remain objective. Objectivity, however, is essential to strengthening your advocacy by identifying the weak areas of your arguments and determining ways to neutralize the weaknesses. It is also necessary because unreasonable arguments undermine your credibility with the panel. It is better to concede legal reality than argue that the sky is pink.

These principles should inform the entire review and preparation process. Do not take for granted the arguments made throughout the litigation up to this point. Try to view those arguments with fresh eyes and always double-check your basic legal assumptions about the case. It may have been mis-framed from the beginning. In all likelihood, you will not be able to alter the theory of the case radically on appeal because of issues of waiver, but there is significant opportunity to refine and, therefore, to recast incrementally the arguments on appeal. (In addition, issues are not waived when they are raised by the appellate bench itself, so be prepared, as much as possible, for out-of-the-box or out-of-left-field theories. They may come up.)

Rehearse Your Oral Presentation

If you work in an office of multiple attorneys, take advantage: Rehearse your appellate presentation. Rehearsals are important because they will allow you to become comfortable with the sound of your voice and the rhythm of oral argument and responding to questions on your feet. Before rehearsing your presentation, there are some basics you should do:

  • outline your arguments;
  • research the applicable court’s rules concerning the amount of time allotted for argument, whether any time can be reserved for rebuttal; and
  • any other court etiquette, such as how you should initially address the court, e.g., “if it pleases the court . . .”

If your colleagues have the time, ask them to engage in multiple types of rehearsals, i.e., one in which you are able to make a complete presentation and another in which the fake bench is hot, so that you will be prepared for multiple eventualities.

Answer Each Justice’s Questions Directly and Succinctly

I fumbled the first question I received in my first oral argument by providing what the justice considered to be an obfuscatory answer. I wanted to step back from the question, in part because I was unsure what the judge was getting at. The question seemed like a trick because it was so simple. I wanted to give a full answer, but my windup to the answer gave the justice the impression that I was ducking his question, and he was displeased. As it turned out, that question, posed by the eventual author of the decision disposing of my appeal, was itself determinative of the action. The takeaway from this vignette is to answer the judges’ questions directly and succinctly. You have a short amount of time to answer their questions, and they are expecting answers that, while thoughtful, are concise and easy to follow. They do not expect to have to wait a few minutes while your answer develops.

Do Not Allow a Justice to Paint You into a Corner

Some judges can be particularly Socratic in their questioning. The device of the reductio ad absurdum is frequently used by judges at appellate hearings because the decisional law is binding not merely on the parties but also on future litigants. Thus, limiting principles are very important for jurisprudence. Accordingly, if an advocate takes the bait and approves of a reductio ad absurdum as consistent with his or her position, then it undermines his or her case. Do not take the bait. Your client does not need the absurd logical implication to be true for his or her position to prevail.

I saw this principle in action. The case involved how the distance between a right of way and the potential property the easement serves factors into whether an easement is appurtenant (runs with the land) versus in gross (personal). The judge asked the attorney advocating for appurtenance whether he could have an easement to access a beach on Cape Cod as an appurtenance to his condominium in Cambridge. The attorney said yes, that under Massachusetts law distance does not matter. The attorney made a tactical error. His client’s property was less than a mile away from the easement area; there was no need to surrender such a factual absurdity. This anecdote was instructive for me because, when I argued in front of the same judge years later, he had a similar question about abutters’ access rights over public ways—whether they could extend to an interstate highway 40 miles away. I said no, but that that is not our case because the abutting property was only a couple hundred feet from the relevant segment of the same public way.

Be Firm, but Always Courteous and Respectful

Related to the last tip, do not shy away from standing up to a judge’s challenging of your position—deference to the bench does not require abdication from your duty as a zealous advocate to your client. As a young attorney, this can be particularly difficult and a minefield. It may be easier for a seasoned veteran to “talk back” to the court, without causing offense. To strike the right balance, young practitioners must temper their duty to defend their positions forcefully with a courteous, respectful, and softened tone. If I am going to disagree with a judge, I try to use “with all due respect” as a prelude and religiously call the judge “Your Honor.” But this balance is not merely about phraseology; it is a difficult art to modulate your tone so that it is disarming, despite the argumentative content of your words. I have far from mastered this tone, but it is an essential aspiration for appellate advocacy.

Do Not Allow Your Argument to Turn Personal or Use Ad Hominem Attacks

This lesson may seem self-explanatory, but in the heat of the argument, do not underestimate your ability to lose control of your tongue. Always, always, avoid ad hominem attacks because they reflect poorly on you and have no place in appellate advocacy. Appellate advocacy, more so than trial-level litigation, is primarily about the law, not personalities. Likewise, try not to refer to opposing counsel’s arguments as his or hers, rather than the client’s, acknowledging that we are all hired guns and showing professional courtesy.

Do Not Become Discouraged

Finally, remember that all you can do is prepare for your case on appeal to the best of your ability. You do not have full control over the outcome of the appeal. I lost my first appeal with a full, published decision, detailing how wrong our positions were. All we litigators can do is prepare, knowing that we will win some and lose some cases.

Keywords: real estate litigation, appellate advocacy, oral argument, ad hominem attacks, reductio ad absurdum

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