Oral Argument in a Court of Last Resort

It is a rare privilege to litigate a case in a court of last resort. High courts resolve significant issues and set binding precedent across the nation. In many ways, advocating before such courts can be similar to briefing and arguing any appeal. In preparing for oral argument, however, counsel should consider some of the fundamental differences between advocacy in trial and appellate courts, which can be amplified in courts of last resort.

Oral argument in an appellate court is very different from argument in a trial court. Unlike a trial before a judge or jury, the outcome of an appeal is typically determined by a majority vote of three to five judges. Arguments that may persuade one judge may dissuade others on the panel. This means that counsel conducting oral argument must consider not only how to answer questions posed by a single judge, but which answers—on balance—may forge a majority of the court or be counterproductive because they persuade one judge but ultimately lose critical votes.

That task can be especially challenging because, unlike a presentation or argument in a trial court, an appellate argument may be as much a back-and-forth with several judges or among those judges as a scripted monologue to a factfinder. Judges may ask questions on a wide array of topics and for any number of reasons. They may, for example, ask questions designed to probe the heart of your case, or because they agree with you and wish to persuade other judges. To be effective, counsel must not only answer all questions asked, no matter how relevant they may seem, but discern why they are being asked and then present the client’s position in a way that is calculated to carry a majority of the court.

Moreover, an appellate argument typically focuses not on disputes over a settled trial-court record, but on applications of that record to unsettled questions of law. As a result, appellate judges may be eager to explore how particular rulings would impact the law in other cases. They usually do so by posing hypotheticals, which counsel must anticipate and answer directly in a manner that will satisfy a majority of the panel, each of whom may have different or conflicting concerns.

These differences between trial and appellate arguments may be further magnified in courts of last resort. Unlike an intermediate appellate court, the U.S. Supreme Court comprises nine justices, and most state courts of last resort include between seven and nine. Counsel must therefore be even more sensitive to the task of crafting answers that will persuade a majority of judges on the court.

In addition, courts of last resort often hear cases only when the law is unclear or when the case has precedential value. Questions will likely not focus on correcting errors in the trial court (even legal ones), but rather on the application of a settled principle to novel circumstances or difficult legal issues over which appellate courts have disagreed. Counsel must expect a wide range of inquiries designed to test the foundations of their case rather than a straightforward recitation of existing law.

Finally, courts of last resort are comparatively unconstrained by precedent and have the final say on the law of their respective jurisdictions. Counsel must always bear in mind that the judges will be focused primarily on the case’s implications for the broader legal landscape and on any statewide or nationwide policy concerns.

Arguments in such courts require extensive preparation. Counsel must prepare a range of potential hard questions and answers and anticipate hypotheticals to pressure-test key positions. Counsel must know every aspect of the case and develop a focused argument, yet be prepared to be pulled in a wide array of directions. And counsel must anticipate the legal and policy arguments that are most likely to forge a majority. It can be especially valuable to enlist moot-court judges with experience arguing in the same court, as they can help fashion likely questions and provide feedback on how to tailor arguments to one or more key judges on the bench.

Of course, the same could be said about preparing for any appellate argument, but preparing for an oral argument in a court of last resort involves special complexity. Fortunately, the unique nature of high courts can aid in the undertaking. For example, unlike in an intermediate appellate court, judges on a court of last resort typically hear all of the appeals argued before that court, which means you know the judges who will resolve the appeal well in advance. Knowing each judge’s perspective on the issues can provide a significant advantage in navigating oral argument. More broadly, you may find it helpful to have a feel regarding what matters to and has historically persuaded the court. You should study the court’s recent decisions, typical lines of questioning, and common voting patterns that have shaped the governing law. By gaining this familiarity as an advocate in a court of last resort, and preparing for argument extensively, you will be well placed to aid the court at oral argument and to advance the cause of your clients.