Supreme Court takes questions at Annual Convention
The Florida Supreme Court
Supreme Court takes questions at Annual Convention
Senior Editor
Being loud, talking over justices asking questions, trying to ignore and bluff through the weak points of a case, and not listening to either the justices’ questions or the other side’s points are not the ways to win an oral argument.
Or as Justice Fred Lewis put it, “The best lawyers I’ve encountered were also the nicest people you’d ever want to meet.”
He made that observation as Supreme Court justices had an informal Q and A with participants in the Young Lawyers Division’s annual Robert Orseck Moot Court Competition during the Bar’s recent Annual Convention. Not surprisingly, most of the session focused on making effective appeals and oral arguments.
The inquiry that got the most thorough discussion by the justices was about the state of lawyer professionalism.
Justice Jorge Labarga said in his 39 years as a lawyer and a judge, lawyer conduct seems to be getting worse, and he said the court has taken notice.
“If you read our discipline opinions on lawyers, we’re not taking prisoners,” he said.
Chief Justice Charles Canady related how he was encouraged following a recently hotly contested oral argument in a high stakes case, the two opposing lawyers shook hands after the oral argument and he could see one tell the other, “Good job.” They then walked out of the courtroom together, chatting.
Justice Alan Lawson said lawyers must remember they are representing more than just the client.
“In an age where the public has lost confidence in institutions, it’s important for the citizenry to understand what we do, what justice is about, and how it protects the rule of law,” he said. “I don’t know a better way to do that than in the cases that present the most compelling facts. . . than to have public oral arguments, where the public can tune in and watch, especially where the advocacy is professional.
“Oral argument in the high profile cases is important and by doing the job as an appellate lawyer as a professional, you’re not just servicing your clients, you are upholding the rule of law by demonstrating this is how the justice system works.”
Are oral arguments always a good idea?
Justice Ricky Polston observed, “I’d say more cases are lost at oral argument than are won,” adding many times lawyers seem unprepared.
“I would simply suggest that you really concentrate on your brief, that you should make your position crystal clear in your brief, because that’s where we’re going to be starting [in oral argument],” Justice Peggy Quince said. “If you’re really good in your brief, you almost don’t need oral argument.”
Justice Barbara Pariente echoed other justices in advising that lawyers not try to gloss over or avoid the weak points of their cases during oral argument.
“Get to the point. Also, you should always prepare very hard on your weakest point. Don’t try to dodge it, you’re not going to dodge it,” she said. By addressing it quickly and concisely, she said the lawyer can return to stressing the strongest points of the case.
Pariente and other justices advised not interrupting or talking over justices when they are asking questions. She noted a study showed that was more likely to happen to female judges and justices than their male counterparts.
Knowing when to stop is also good. Labarga recounted a hearing from his days on the trial bench when he was ready to rule for an attorney on a motion, told him so, but the attorney kept talking. Eventually he raised issues that the opposing counsel said needed to be addressed in another hearing, which was duly held and resulted in the first attorney losing the motion.
He also said there’s a trend for lawyers to refer to judges and justices on appellate panels as “you guys.” Bad idea.
“This is a formal place,” Labarga said.
He also said while oral arguments may emphasize lawyers talking ability, listening is just as, or perhaps more, important. Lawyers should listen carefully to what justices are asking and respond to the question, not just make the points they’re pushing. He said in trials, questions asked by jurors can show how they are thinking and what’s important to them, but he’s seen cases where lawyers stick to their trial strategy even when jurors’ questions clearly show they have other concerns.
Lewis advised the students to watch as many oral arguments as they can, and particularly pay attention to veteran attorneys who regularly appear before the court.
“Those who have experience generally do not fall into bad habits,” he said, adding that learning is a continual process, including for the justices.
“The professional aspect is understanding the dignity of the forum; many times it’s just common decency,” Lewis said.
