A Few Practical Tips for Oral Argument
Introducing students to appellate advocacy includes practicing and building on basic skills of persuasive brief writing and oral presentations. Students refine their research choices, incorporate multiple draft editing, and learn to moot their oral arguments. In practice, appellate lawyers learn there is much more to know about making a successful appeal. According to David Lat at Above the Law, even seasoned lawyers can improve their chances at winning on appeal with some thought to more practical issues encountered at the appellate level. Lat distilled the points made by appellate practitioners and judges in creating this list:
1. Select an issue on appeal that is attractive for oral argument. Cases where oral argument was held had better chances of reversal, because the judges had to spend more time with the case.
As Judge Higginson explained, if your case doesn’t get oral argument, the judges won’t have to sit down and prepare for argument, which involves close reading of the briefs and record; the judges won’t get to hear from you as an oral advocate, emphasizing key points or dispelling misimpressions; and the judges won’t discuss the case face to face with their colleagues, instead handling the matter by email.
2. Select an issue that has been preserved at the trial level, is legal in character, and makes a difference beyond the individual case. Understanding why the appellate court might be interested in a case helps the advocate to craft an approach. An appellate court will be more likely to defer to the trial court on a factual issue, so that would be harder to win. But if the question is legal in nature and is not well settled, the court many have more interest.
How can you find such issues? Judge Higginson said to look out for intra-circuit conflicts, or inconsistencies between different precedents from your circuit; inter-circuit conflicts, which suggest that a legal issue doesn’t have an obvious resolution; questions left open by the U.S. Supreme Court (e.g., “we do not decide [x]” in this ruling, or an issue raised by a certiorari petition that SCOTUS keeps relisting); and questions that get debated in law professor blogs, which often involve unsettled issues or percolating problems in an area of law.
3. Know the players, and know your audience. Does the trial judge have a good reputation; how about the lawyers involve in the case? How has the court ruled on similar issues in the past? This will help you gauge how successful your appeal may be, give you an idea of the most persuasive approach, and whether you should spend all those hours on something that may never have a chance. Lat says these things shouldn’t matter, but they do.
As a practical matter, though, things like the district judge being reviewed, the lawyers involved in the case, and the appellate judges on the panel actually matter. Some district judges have better reputations than others at the circuit court, as do some lawyers. And you definitely want to find out how the members of your appellate panel have ruled in the past on issues like the ones raised in your appeal (which you can figure out easily through judge-based searches on Westlaw and other legal research platforms).
4. Be precise and accurate with the facts and the law. Catching an advocate in misrepresentations or inaccuracies is easier than ever, and immediate. Judges have hyperlinks right in from of them as they read your brief or as you argue and can instantly check the veracity of your statements. Ensure that any fact or point of law you discuss is spot on.
Things that judges look out for when reading briefs: (1) ellipses (the judges will check to see what you left out); (2) words like “clearly” or “obviously” (especially when they’re not accompanied by citations); and (3) substantive matters discussed in your footnotes (because lawyers like to subordinate hard issues, and that often means dropping them in the footnotes).
5. Mooting is not moot! Students do a lot of this in law school, but practicing lawyers shouldn’t abandon this practice arena in the lead up to their oral argument. Lat says this is still the best way to prepare a presentation for the court.
Think carefully about the colleagues you pick for your moots. You want skeptical lawyers who aren’t afraid to grill you (which is why having subordinates on your moots — e.g., associates if you’re a partner — isn’t always the best idea). Having people who will put the time in to prepare for your moot and familiarize themselves thoroughly with your case can be helpful because they will subject you to the toughest questioning. But it’s also not a bad idea to have one questioner who isn’t as deeply familiar with the case, to simulate a busy judge who doesn’t have the time to give your case as much attention as it might deserve. As experienced advocates know, judges vary significantly in their levels of preparation for argument.
6. Conclude with a purpose. While the oral argument is a conversation with the court, sometimes judges can monopolize the time and take you off track. If you are nearing the end of your allotted time, do everything possible to make a well-rounded final statement, or perhaps include the points you feel are important but you didn’t get a chance to address. Lat suggests:
But as you enter the home stretch, it’s perfectly fine to say something like, “With the court’s permission, in my remaining time I’d like to make two final points.”
Fewer and fewer cases are selected for oral argument these days. Even though so many cases are decided on the briefs alone, it is still advantageous to argue before the court. When the opportunity arises, some strategic thinking and anticipation of a few practical points may be very beneficial to the outcome.