Appellate Practice Group Roundtable: Do’s and Don’ts of Oral Argument

The Litigation Section’s Appellate Practice Committee held the second installment of its series on appellate advocacy on September 27, 2023, featuring the insight and advice of seasoned appellate judges. The roundtable discussion was moderated by Ashley Koos, litigation associate at Haynes and Boone, LLP, and featured the Honorable Toby Heytens from the U.S. Court of Appeals for the Fourth Circuit; the Honorable Lucy Inman, former judge on the North Carolina Court of Appeals; and the Honorable Luis Filipe Restrepo from the U.S. Court of Appeals for the Third Circuit.

During the discussion, the panelists covered best practices in appellate oral advocacy, including advice on being an effective oral advocate. They highlighted the importance of concision and preparation and offered tips on handling tough questions and responding to questions from a “hot bench.” The panelists also identified common pitfalls in appellate oral advocacy that attorneys should avoid to make oral argument an effective means of advocating for clients.

Briefing

The bulk of an advocate’s work in an appeal takes place before oral argument—thoroughly researching case law, examining the record, formulating persuasive arguments, and drafting compelling briefs. Judges must reach a just result in a case that conforms with the normative, precedential, and factual limitations of the cases before them. Briefing is an advocate’s main tool in this process, but appellate attorneys must also be prepared to drive a case home through effective oral advocacy.

The panelists pointed out that advocates should never assume that a case has already been decided on the briefing and that oral argument only takes on secondary importance in the process of judicial decision-making. Depending on the court, a case may or may not be scheduled for oral argument. Some appellate courts decide solely on the briefs. As a result, if an advocate’s case has been granted oral argument, he or she should be aware that there are questions about the case that the court thinks would benefit from a discussion with counsel.

Effective Oral Advocacy

The panel underscored several practices and techniques that can help advocates craft an effective oral argument:

1. Listen. Always listen to both the arguments of your opponent and the questions from the judges. Be sure that you are responding to the concerns of the judges rather than only getting across the ideas and points that you predict will be helpful to your case.
2. Answer the question asked. Instead of hedging or dodging a direct question, face the question head-on. The best answers address difficult questions frankly and honestly, while the worst answers avoid challenging questions and suggest to the court that an advocate has not fully anticipated and thought through facts or precedent that may undermine their position. Time is limited in oral argument, and judges prefer that an advocate focus on answering questions the court has identified as helpful in reaching a decision.
3. Be efficient. Think about what issues or questions may come up in oral argument at the brief-writing stage. Look at the arguments of your opponent in their briefing as a good indicator of what questions a panel of judges may ask on appeal. Distill these topics into a handful of main ideas you would like to get across to the court in the first minute or two of oral argument. If you have the opportunity to offer a rebuttal, be concise—and then sit down.
4. Prepare. Advocates do not control the pacing or flow of oral argument—the judges do. Think about the questions you would not want to be asked, and be prepared to answer them. Practice arguing with others who have not worked on the case or in your area of law. Because oral argument is an opportunity to teach the court and to explain what advocates want the court to do, ensure that your research has been thorough and that you have mastered the record. Beyond simply asserting that the lower court was mistaken or correct, be prepared to explain what you want the appellate court to do—in other words, answer the question, “What is the syllabus point you want us to write in our opinion?” Think about the narrowest possible ruling that would win your case without closing the door to a future ruling on the same issue that may be broader.

Interruptions: An Avenue for Addressing the Court’s Concerns

Advocates often worry that judges will interrupt their arguments and ask so many questions that they ultimately cannot get their most helpful arguments across before their time has expired. The panelists explained that advocates should listen to what questions the judges are asking and answer them in a professional manner. It is important to remember that oral argument presents an opportunity to peek behind the curtain and hear what may be troubling the court and address those concerns. With limited time in an oral argument, judges’ interruptions are often designed to help advocates focus on the remaining key issues that would be most helpful to the court, not argue with advocates and undermine their positions. At some point, respectfully signaling that you have no more to say on the topic may be helpful in trying to steer the conversation back to other issues.

Unfavorable Authority

During oral argument, tough questions may come up about judicial decisions that seem to conflict with the arguments of one party. Attorneys should assume that these questions will come up! The panelists explained that effective advocates will structure their briefs to explain why seemingly unfavorable authority is distinguishable in writing before oral argument because briefs allow for much deeper analysis and a greater level of detail than oral argument. Arguments about public policy are likewise less effective and should be cited as a last resort.

Oral Argument Skills

Your comfort level with oral argument will improve with practice and experience. Rather than refer advocates to particular books or self-help resources, the panel offered some practical tips for improving oral-argument skills:

Tip No. 1: Read the briefs and the record. Knowledge of the law and the facts of the case is often much more important in establishing and maintaining credibility than knowing any particular public-speaking tips or tricks. Substance is the most important.

Tip No. 2: Identify others whom you respect and think are effective oral advocates and listen to examples of their arguments. You cannot turn yourself into someone else, but you will start to see patterns as you listen to others’ oral arguments and discover what can make your oral advocacy more impactful.