September 27, 2018

Oral Advocacy from the Perspective of the Bench with Judge Mary R. Russell of the Supreme Court of Missouri

Mathew Kerbis

Mathew Kerbis (MK): What do you think of when you think of oral advocacy?

Mary Russell (MR): I think of attorneys appearing in our courtroom trying to give the best persuasive presentation they can on why their client should win on appeal.

MK: In what areas of law did you practice before taking the bench? In what ways did you engage in oral advocacy as a practicing attorney?

MR: I was a general civil litigator in Hannibal, Missouri. I did a small amount of criminal work, but mostly civil litigation, including an appellate practice. Most matters I was involved in were bench tried, with a few jury trials. I had a lot of opportunities to advocate for clients in the courtroom.

I went to law school to help people. In working in a small town, most of your clients are people who need help. You listen to their problems and explain to them where they stand in relationship to the law. If the client walks out and says they feel so much better now, then I always felt gratified that I did my job well.

MK: Did having an appellate practice change the way through which you viewed oral advocacy?

MR: It helped me be a better judge. From walking in the shoes of an appellate advocate, I can perceive what an attorney might be feeling and what the pressures are in giving an oral argument.

MK: When did you first become a judge?

MR: I joined the court of appeals in 1995 and joined the Supreme Court in 2004. After graduation from law school, I worked at the Supreme Court as a law clerk for one year. Some people have asked me if I dreamed of being a judge on the Supreme Court while I was a law clerk. Because women weren’t judges at that time, I never dreamed of being a judge.

MK: What type of cases did you hear?

MR: The court of appeals in Missouri has general appellate jurisdiction. Under the Missouri Constitution every aggrieved party at trial is granted one automatic right to appeal to the court of appeals, no matter the size or type of case. The court of appeals hears appeals in every case from agriculture to zoning, and both criminal and civil. The Supreme Court has exclusive appellate jurisdiction in five categories of cases as provided for in the Missouri Constitution. In addition, the Supreme Court has discretionary appellate jurisdiction after transfer from the court of appeals.

A state Supreme Court case usually involves issues of first impression, as well as constitutional questions, in which the court has exclusive appellate jurisdiction. The Supreme Court uniquely also has all the attorney discipline cases and judge discipline cases. The attorneys appearing before the Supreme Court are more often experienced appellate advocates, but there is the occasional first-time attorney.

MK: How does oral advocacy play a role in your job as a Supreme Court Justice?

MR: As a judge, we are completely neutral in deciding appeals. We have no favorite home team. We listen and review both sides of every argument. There is a time, in the confidential conversations on the court, when through conversations to our colleagues we can be an advocate, to persuade them to our viewpoint on a particular case. We do this to promote our viewpoint so that our viewpoint can become the majority opinion. It takes 4 votes to become a majority opinion. It’s fun to go back to being an advocate with our colleagues in the privacy of our chambers.

MK: Is oral argument important?

MR: Yes. Obviously, we read the briefs in all cases in advance of oral argument. I usually formulate an opinion at that point pending oral argument. In the court of appeals maybe 90 percent of the time I did not change my mind as a result of oral argument.

At the Supreme Court, when I walk into the courtroom for oral arguments after reading the briefs, I may not be sure how to rule if the question in front of us is one of first impression. Perhaps only 40 percent of the time my opinion from reading the briefs does not change after oral argument.

Oral argument can be very helpful. That is why attorneys should not waive oral arguments. It can clarify things and make the judge more confident in their position.

Typically, we go into our conference room after oral arguments and discuss the cases we heard that day. We conduct a non-binding preliminary vote. Whomever is assigned to write the opinion may ultimately change their vote upon a fuller examination of the case. All the members of the court are very smart, and sometimes we craft an opinion based on something no one had thought about prior to our collective conferencing.

MK: Is there is difference in oral advocacy from the defense bar versus the plaintiff bar? Prosecutors and public defenders?

MR: Any difference is more likely based on who is the appellant and who is the respondent. Keeping in mind the standard of review the court is bound by, and further, because some appeals are often concerning discretionary matters, it is difficult for appellants to win on appeal. So, appellants have to do more persuasion to be successful than respondents.

MK: Can you tell when an attorney is under prepared? How?

MR: Yes. It doesn’t happen that often. For example, when an attorney is not familiar with the facts and law they will read their material without eye contact with the court and can’t answer our questions. They may be also unorganized in their argument. Another example of being unprepared is when lawyers call judges by the wrong name. When I started on the court, I was one of the first few female judges, and would often be called the name of another female judge.

MK: How should an attorney prepare to engage in oral advocacy before a court of appeals?

MR: If you have the time and geographical proximity, come watch a case being argued at the court. Observe the dynamics of the courtroom. See how docket call is done, know when you are supposed to be in your seat, and see where you can have privacy to do last minute preparation, if necessary. Watch the rhythm of the court. Which judges ask the most questions? How do other attorneys handle oral argument? I urge you to know your case inside and out. Know the facts and most important know the cases you cite inside and out. Be able to distinguish your opponent’s cases. Make a little outline so that you remember exactly the biggest points you want to get across to the court. Don’t be frustrated when deviating from your outline. Study the judges’ prior opinions to see who will need the most persuasion to your point of view.

MK: What is a successful oral argument?

MR: Many first-time attorneys consider success in oral argument if they finish the entire speech they prepared in the allotted time. I was guilty of that when I first started out. It wasn’t until I got on the bench that I learned the real purpose of oral argument, which is to make sure that the judges have the correct understanding of the law, the facts, and the requested relief. It’s important that any questions asked of the attorney are addressed fully. Don’t put the answer off. Pause and make sure any other follow-up questions that are being asked are also answered. That’s a successful oral argument. You’ve made sure that your position is understood by the court. Any doubt or questions the judges had have been answered with satisfaction.

If you don’t know an answer to a question, it is best to say I don’t know the answer. Offer to submit the information in a letter the next day. That candor is greatly appreciated as opposed to making something up.

MK: In your experience, do attorneys ever get to advocate from start to finish without being asked a question by a judge?

MR: Rarely.

MK: For what purpose does a judge ask a question during oral arguments?

MR: Some questions are asked in order to clarify some contradictory or unclear statements made in the two briefs or to ascertain what implications might result in the future from agreeing with one particular judge, or to give the court clearer direction on what the party is seeking. It could concern what’s not said in the briefs. For example, “What do other states say on this issue?” There could also be a softball or leading question to reinforce a judge’s position and to make a point to another judge on the bench.

MK: Without getting into specific cases or attorneys, is there a moment that stands out in your memory of particularly excellent oral advocacy? Deficiently poor oral advocacy? Why? What did the attorney do/not do?

MR: One time an attorney came before us on a case that was pretty straightforward and he made a brief oral argument, but then said, “I’m here to answer your questions, so please ask me whatever you want.” He stood there for us to ask him questions. As I’ve said before, the purpose of oral argument is answering any questions or concerns the court may have about your case. We asked a few questions and then he went back to his highlighted main arguments. He first focused on allowing the court to ask what we want to address. He did not waste time repeating a lot of the facts, and then at the end he told us what he wanted. Sometimes it’s not always as clear from the briefs as you might think. End your oral argument with exactly what you want us to do.

Talking too fast is not effective. Talking too softly is not very effective. Observe the judges’ and consider their hearing level. What you don’t want is to be halfway through your argument and a judge asks you to speak up or says they can’t hear you. Avoid these impediments. Don’t use slang, or other informality, i.e., “you guys know” when addressing the court.

MK: Has oral advocacy changed over the years? How has technology advanced oral advocacy?

MR: From the attorney’s perspective oral arguments are pretty much given the same as was done 50 years ago. Today though, we stream the audio of oral arguments live on the internet and archive it on our website as well. The Judges have iPads with the briefs on them along with Westlaw for research at our fingertips. All pleadings are filed electronically with the court. About 10 years ago we experimented with remote oral arguments in the court of appeals, but it did not catch on. I am not sure how that changes the dynamics of the proceeding. I would hate to see where someday judges stay at home for oral arguments and participate by video conferencing. I still think having the formality and dynamics of the courtroom is important.

MK: Has technology replaced oral advocacy?

MR: Not that I have seen yet.

MK: Do you think that artificial intelligence and machine learning can replace oral advocacy in the practice of law?

MR: What appellate judges do involves much individual judgment and is not a yes/no exercise. Writing opinions includes analytic decision making that could not be performed by a machine. Questions of first impression or interpreting a statute involve many legal considerations.

MK: For our young lawyer readers out there, is there any more wisdom/advice that you would like to share regarding oral advocacy?

MR: Practice makes perfect. Bottom line is be prepared. Think of an oral argument as a conversation. We had a former judge on this court whose best advice was, “wear a suit and be the respondent.”

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Mathew Kerbis

Mathew Kerbis is an associate attorney at Condon & Cook in Chicago, Illinois. Judge Mary R. Russell was appointed to the Missouri Supreme Court in September 2004; retained in office at the November 2006 general election for a twelve-year term expiring December 31, 2018; and served a two-year term as chief justice from July 2013 through June 2015.