October 2018 | Around the ABA

State supreme court justice: Keys for successful oral arguments

According to Judge Mary R. Russell of the Missouri Supreme Court, a successful oral argument is one where 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.”

Russell participated in a Q&A session with Mathew Kerbis in “Oral Advocacy from the Perspective of the Bench,” in a recent issue of TYL.

Russell, who joined the court of appeals in Missouri in 1995, was appointed to the state Supreme Court in 2004 and served as chief justice from 2013-15. She will complete a 12-year term in December.

The judge explains the uniqueness of her court to Kerbis, an associate at Condon & Cook in Chicago. “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,” Russell says.

She advises that attorneys shouldn’t pass up the opportunity to make oral arguments. “It can clarify things and make the judge more confident in their position.”

Although it doesn’t often happen, Russell says she can tell when an attorney is underprepared.

“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,” Russell says. “They may be also unorganized in their argument. Another example of being unprepared is when lawyers call judges by the wrong name.”

Russell recommends newbies come and watch a case being argued in 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,” she advises. “Watch the rhythm of the court. Which judges ask the most questions? How do other attorneys handle oral argument?”

In addition to knowing your own case, the judge urges lawyers to “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.”

Russell admits when she was starting out she thought she had a successful argument if she finished the speech she prepared in the allotted time.

“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,” she says.

Russell relays the story of one attorney’s successful strategy. After a brief oral argument he said, “I’m here to answer your questions, so please ask me whatever you want.” Russell says the judges asked a few questions, then the lawyer returned to his main arguments. “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,” she says.

Other advice from Russell:

  • Don’t talk too fast.
  • Don’t talk too slow.
  • Speak up so a judge doesn’t interrupt you saying they can’t hear you.
  • Avoid using slang and be formal when addressing the court
  • If you don’t know the answer to a question, admit it and offer to submit it in a letter the next day.
  • Of course, be prepared.

Russell closes by saying that oral arguments are given in much the same way as they were 50 years ago, but nowadays the audio is streamed live on the internet and archived on the court’s website. In addition, the judges are equipped with iPads containing both the briefs and Westlaw for research, and pleadings are filed electronically.

She says that her court experimented with remote oral arguments, 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,” she says. “I still think having the formality and dynamics of the courtroom is important.”

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