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March 26, 2014 Articles

Oral Argument: Facing the Challenge and Embracing the Opportunity

By Margaret Grignon

For many years, I sat as an appellate judge in state court, listening to oral arguments, questioning counsel about the record and case authorities, and testing my conclusions about the appeal. For the last eight years, I have stood on the other side of the bench, attempting to answer the judges’ questions, trying to decipher the purpose of the questions and, perhaps, persuading the judges to change their minds.

Both of these perspectives have made it clear to me that while oral argument is stressful and time consuming, it is a chance to have a conversation with the judges deciding your case, to present your arguments in a new way that the judges may find persuasive when previous iterations may have been unsuccessful, to answer any questions the judges may have, to clear up any misperceptions of the record or the law, to persuade one or more judges in a split panel to move in your direction, and to convince judges who appear to be against your position to change their minds.

The challenge, of course, is to be prepared to take advantage of the opportunity. And the key to a successful oral argument is preparation. Did I catch the judges’ interest by shining a different light on my arguments, did I rebut my opponent’s arguments, did I anticipate the questions the judges would ask, did I have answers for all the questions, and was I able to bring the argument back on track when it was momentarily thrown off course by my opponent’s argument or the court’s questions?

Frequently, I am asked how I prepare for oral argument. To some extent, the answer to this question is individual and case and client dependent. But there are some universal tenets that I believe hold true for most arguments.

To begin, I start my preparation early—usually as soon as possible after I receive the oral argument notice—by reviewing the briefs. Typically, it has been some time between the preparation of the briefs and the setting of argument, and I need to get my head back into the appeal and reconnect with the essence of the case. Then, I let it percolate.

Next, I review the case authorities—all the case authorities—cited in the briefs. For me, the most useful practice is to prepare a notebook (or notebooks) of all the cases cited in the briefs in alphabetical order. I associate each case with the briefs and the issues raised. For example, I note that the appellant cited the case in its reply brief on the parole evidence rule issue. As I read through the cases, I note the pertinent facts and procedure on the caption page and I tag the cases that are particularly significant.

Do I read every word of every case? Of course not. If a familiar case is cited for the standard of review, for example, and the standard of review is not an issue in the case, there is no need to read the case. Likewise, if a case is significant in your appeal only for its attorney fee holding, there may be no reason to review the entire case.

While the appeal has been pending, I have been on the alert for any new, relevant authority. But at this time, I conduct a more formal search to update the case authority and confirm that the cited cases remain good law. I then consider whether any new authority should or must be brought to the attention of the court and opposing counsel. This needs to be done in writing before argument. You cannot spring new authority on the court and opposing counsel at the time of argument, unless the new authority actually came out the night before the argument.

After I have finished with the case authorities, I turn to the record. Depending on the size of the record, I either review the record in its entirety or I review the summary of the record prepared at the time the briefs were written. I take notes. I make timelines. I write down important names and places. This pre-argument record review is always an eye opener for me. It makes me remember things I have forgotten. It corrects any misunderstandings or misremembrances of the facts and procedure. And occasionally I discover a new way to look at the theories, facts, and procedural events of the case.

Why do I review the record? It would be a mistake to believe that judges and their law clerks simply rely on the briefs and the record references cited in the briefs. Judges want to make sure they get their decisions right. They want to be fair. They want to understand the flow of the case in the trial court. In a recent oral argument, one of the judges confronted my opposing counsel with a statement he had made in a brief in a prior appeal in the case that contradicted the argument he was currently making. In another, a judge confronted my opposing counsel with a fact from the record, disposing of one of counsel’s arguments—a fact neither side had noted in the briefing. Both of these judges had gone well beyond the briefs in their record reviews and brought fresh new considerations to light.

Having reviewed the cases and the record, I turn to my oral argument notes. If I am the appellant, I frequently prepare a detailed outline or write out my argument. I practice. This serves two purposes. If I am asked no questions, I am prepared to highlight the points I think are most important. If I do get asked questions, and I have correctly anticipated the questions, the answers may be found in my prepared remarks.

Then I anticipate questions and prepare answers to those questions. The goal is not to have a script you can read verbatim to the judges—that usually is not effective advocacy. But if you have written a proposed answer, your delivery of that answer will be fluent, complete, and comprehensible.

If feasible, you should participate in a moot court a few days before the scheduled oral argument. This is invaluable both as practice and, more importantly, to let fresh eyes ferret out the weaknesses in the case.

Now you are prepared. On the day of oral argument, review your notes and your prepared remarks. Get to court early so you are calm and collected. If you are the appellant, approach the lectern with a paragraph introduction ready to go. If you are the respondent, respond to the appellant’s oral argument—and where necessary the appellant’s reply brief arguments—within the context of your “story” or theme. Maintain eye contact with all the judges as much as possible. Be respectful. Don’t ever interrupt a judge. Don’t fail to answer a question directly and immediately. Welcome questions as the beginning of a conversation with the judges that is the best and most meaningful part of oral argument.

Focus on the judges, their body language and their questions. Your preparation will mean that you will not need to search frantically through your brain to figure out the answer to the question. Instead, you will know the answer and can devote your thoughts to the purpose of the question, the best way to frame the answer, and the means to segue from the answer to another point that needs to be made. If the panel has indicated explicitly or implicitly that they are with you, truncate your argument, highlight any additional grounds for ruling in your favor on which the court may not have focused—such as procedural bars or defaults and standards of review—sum up, and remind the court of the relief or remedy that you have requested.

Oral argument can be an exhilarating experience. Confronted with three to nine prepared and engaged appellate judges—sometimes with different perspectives or views of your case—a good oral argument inspires a good appellate advocate to be the best that she can be or, as I like to say, “turn her brain on full blast.” Life presents few opportunities for such high-level interactions. They should be cherished and sought out.

You cannot prevail in every case in which you participate, whether you are the appellant or the respondent. You cannot win every oral argument. But every oral argument can be successful because you were prepared, faced the challenge of pointed and occasionally even hostile questions, and embraced the opportunity for one last chance to persuade the appellate judges.

Keywords: woman advocate, litigation, appeals, appellate argument, oral argument, judges, persuasion, preparation, moot court, appellate record

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