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Roundtable Recap: Fundamentals of Oral Advocacy on Appeal

Daniel Kessler

Summary

  • Find the preparation strategy that works best for you.
  • Think of the hard questions and have answers prepared.
  • After you’ve prepared for oral argument, it can help to bring in diverse perspectives, including colleagues inside and outside of your firm or students from a law school moot court program.
  • If you are unable to answer a question, never lie to the court.
Roundtable Recap: Fundamentals of Oral Advocacy on Appeal
Justin Pumfrey via Getty Images

On December 10, 2020, the ABA Litigation Section Appellate Practice Committee hosted “Fundamentals of Oral Advocacy on Appeal,” a roundtable with Margaret Grignon, partner at Grignon Law Firm and a former California Court of Appeal judge; the Honorable Kimberly Knill, judge of the Orange County Superior Court; and M.C. Sungaila, chair of the Appellate Practice Group and shareholder at Buchalter Law Firm. Preparation and candor to the court were consistent themes throughout the discussion. If you are seeking to start your appellate practice, here are some of their tips to help you along the way. 

Preparation Is Essential

It could be months or even years since you first wrote your appellate brief, so immediately after receiving the notice of appeal, reread the briefs and the underlying judgment by the trial court. From there, find the preparation strategy that works best for you. One route is to make a list of every citation in the briefs, then compile the cases. In order to highlight the essential parts of each case, write notes about who cited the case, the relevant holding, and the procedural posture. You should also review the record, which may involve developing a timeline or story to help present the material facts.

You should always write out an introduction. Some attorneys find writing out their entire oral argument is effective, but be wary of only reading from a script. No justice wants to watch you stare at your papers and ignore their questions during oral arguments.

Before You Become an Advocate, Stay Neutral

By the time you are in court, you have ideally prepared so much that you know that you will win. Before you get to that point, you should be aware of the ways you could lose. Think of the hard questions and have answers prepared. Grignon said that all her wonderings about her cases tend to come up as questions. “If you wonder, they’re going to wonder and you should have an answer for that.”

Fresh Eyes Help

After you’ve prepared for oral argument, it can help to bring in diverse perspectives, including colleagues inside and outside of your firm or students from a law school moot court program. Retired justices are sometimes available to participate in a moot. However, this is not for every case as the retired justices’ preparation and appearance time can be costly.

Candor to the Court

With adequate preparation, the justices will not know the case as well as you do. However, go into court assuming that your briefs have been fully reviewed and that a draft opinion has already been written and circulated to the justices on the panel. The record will also have been reviewed in some length by each justice, and there will have been some discussion about the issues and draft opinion.

If you are unable to answer a question, never lie to the court. A lie or misstatement can ruin your reputation and critically affect your case. It can be helpful to have a second person who knows the case and the record as well as you do. With that person’s help, you can offer to respond to the justice’s question on rebuttal or to brief the court at a later date. Adequate preparation can limit the number of times this happens.

Do Not Surprise the Court

Since the briefs were submitted, the law may have developed or new cases may have been decided that are favorable to your case. First, be aware of the law by re-Shepardizing cases during your preparation. You should not spring new case citations on the court or opposing counsel. Depending on the rules of the court, you could send a letter prior to argument informing the court and opposing counsel that you intend to cite and discuss a new case at oral argument.

More Oral Argument Tips

You can’t argue every issue in your brief. Develop a strategy for what to talk about: either focus on arguments you are certain will win or on the arguments you are worried about. Next, think about how you can present issues in a fresh way—so that one additional justice might be swayed to your side.

Every justice has a different questioning style, but if you are asked a question, answer it. If the question changes the topic, be flexible. The justice may be more interested in that topic, and you can always come back to your outline. Overall, questions are a good sign for your case—you want to have a conversation with the justices, not give a speech to them.

Some questions, especially hypotheticals, might lead you to tricky areas. Think about what the justice is asking about before answering. She might be looking for the outside parameters of the rule you’re seeking. Preparation will help you think about why the justice is asking a particular question and allow you to pick up on subtle clues.

Particularities of Remote Oral Arguments

Ensure in advance that your internet connection is strong. Practice calling a colleague from the computer you will use and from the spot you will be calling from. If you are using videoconferencing, dress professionally, and try to make sure your surroundings and outside noises are not distracting to the court. Be sure to consult with the many resources online about lighting, cameras, microphones, screens, and whether to sit or stand.

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