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The Art of the Appeal

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The Art of the Appeal

Part III: Oral Argument

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In part two of this series, I discussed the most effective strategies to control the issues and fight the battle on your strongest ground when drafting the argument section of an appellate brief. In this part, I explore additional strategies for preparing for oral argument.

Barry Richard The percentage of cases in which oral argument is granted and the time allotted for argument has steadily decreased over time in both state and federal courts. This has led some writers to suggest that oral argument serves no purpose. My experience suggests otherwise. I have participated in a number of appeals in which it was apparent from the oral argument and opinion that a dialogue at oral argument was crucial to the decision. I have also been told by judges in more than one case that a single answer to a question from the bench was determinative. In any case, it doesn’t matter. If the court schedules oral argument, you must assume that at least some members of the panel are undecided and are depending on oral argument to help them decide.

Effective oral argument requires two skills: the ability to speak comfortably under pressure, and the ability to respond instantaneously to a barrage of questions from judges who are probing the weaknesses of your argument. If you lack those skills, you owe it to your client to ask someone else to handle the oral argument.

Oral argument presents more challenges to the goal of controlling the issues than brief writing. The lawyer drafting a brief has total control of the manner and sequence of presenting the argument. On oral argument, the bench is in control. I have presented oral argument to panels that asked no questions and panels that began the questioning before the first word was uttered by the lawyers and never let up. You should hope for an active court. The primary advantage of oral argument is the opportunity to learn what issues continue to concern the judges after reading the briefs and to address those issues. A silent court provides no clue as to the judges’ mindset and no guidance as to what to emphasize.

Be Flexible
Don’t even think about reading or memorizing your argument. You’re not likely to get very far before the questions begin, you will probably lose your place after answering a question, and you will surely lose the court’s interest as soon as you start. Don’t take a detailed outline to the lectern. You won’t be able to follow the outline, and you won’t have time to rearrange it on the fly or to find particular notes as you’re answering questions. You must be able to follow the court’s lead and be responsive to questions, yet keep the court focused on your theory of appeal. You must remain flexible. There is only one way to accomplish this. You must have a thorough knowledge of the facts and law and such a detailed picture in your mind of the battlefield of issues that you know instantly what impact every question and answer will have on the battle. This requires an exquisite level of preparation.

Every successful appellate lawyer develops his or her own methods of preparation for oral argument. No particular method is best, but the end result must be flexibility and razor-sharp awareness. My method is a five-step process. I begin by personally reviewing the entire record and making notes. I do not rely on a summary of the record prepared by an associate or paralegal. Reviewing it myself makes it easier to remember, and enables me to make representations to the court about the contents of the record on personal knowledge. I use apps on an iPad that make it easy for me to read, highlight, and notate documents and transcripts even while traveling. Next, I review the applicable case law and formulate my strategy. Third, I prepare a detailed outline of my argument, including references to facts and citation of legal authorities. I do not use the outline during argument, but creation of the outline helps me remember. Fourth, I reduce the outline to a very short topical outline, never more than two pages that can be read by a glance. I take the short outline to the lectern, usually on an iPad, to serve as a quick reminder of items I want to cover. In practice, I find that I rarely need to look at the outline during the argument. Fifth, I spend considerable time in the days prior to the argument engaging in a mental exercise in which I contemplate every possible question, formulate answers and test their strength. In some complex cases, I also arrange a moot court exercise.

Build an Impregnable Fortress
Oral argument is a test of your ability to advance your position while under sustained assault. The judges will challenge the lawyers on what they perceive to be the weaknesses in their argument. Often the panel will vigorously question the appellant’s lawyer, leaving the impression they are favorable to the appellee, and then question the appellee’s lawyer equally or more vigorously. Some lawyers, faced with continued questioning from an apparently intransigent judge, will give up on the judge and attempt to move on to another issue. That’s a mistake. Other undecided judges may be observing the exchange to see how effectively the lawyer is able to sustain his or her position. It is even possible the questioning judge favors the lawyer and is trying to demonstrate to other judges the ability of the lawyer to effectively respond under fire.

It is critically important that you formulate a position on oral argument you can credibly defend against all conceivable questions. Your answers may not always persuade every judge, but your position must always remain viable. Building your fortress begins with the brief. When drafting the brief, remember that anything stated in the brief can be challenged on oral argument. An argument that appears strong on paper may suddenly look weak under probing questions by the court. You have to ask not only whether the argument looks good when read, but whether it can be effectively defended under questioning. A moot court exercise can be very helpful in testing the defensibility of arguments.
Simplicity in a brief is important, not only because simpler arguments are more persuasive, but because of the impact on oral argument. A complicated argument, even if not an ideal technique, may be amenable to a persuasive explication in a brief where it can be presented without time constraints or interruptions. The same argument given orally while subject to questioning might become fragmented and confusing.

Keep It Focused
Oral argument is an unfortunate name for the function. It is important not to visualize your purpose as arguing with the court. Your chances of winning over a skeptical judge are not enhanced by an argumentative attitude or oratorical flourishes. It is better to envision the exercise as a relaxed conversation with the judges in which you are explaining your point of view much as you would to a colleague over lunch.

Anything that distracts the judges from your message — your clothes, your demeanor, your grooming — that captures a judge’s attention to the exclusion of your message is negative. You want the judge focused on what you are saying, not what you look or sound like. If a judge perceives an answer as unresponsive, you may not lose the judge’s attention, but you will lose credibility, which will reduce the impact of the remainder of your argument. When questions call for a yes or no answer, begin with “yes” or “no”. Never begin with an explanation. It can appear unresponsive. You can follow with an explanation. Never tell a judge you will get to the answer later in your presentation. The judge will probably be annoyed and you might never get back to the question. The organization of your argument is not as important as the court’s perception that you are fully responsive. You cannot force the argument on the court according to your timeline. The court will dictate the order of presentation. You must be prepared to be responsive, always looking for openings in the questions to advance your theory.

Don’t be afraid to make concessions. Refusing to concede something that should be conceded will frustrate the judges and might draw you into an extended debate with a judge, wasting valuable time and digressing from your theory of appeal. On the other hand, the willingness to concede gives you credibility and provides an opportunity to explain why the concession does not undermine your position, and to refocus the court on your theory of appeal.

Posture and demeanor at the lectern is important. If you observe appellate arguments for a while, you will see a range of distracting actions. Slouching, swaying from side to side, continuously switching from one leg to the other, waiving a pen or pencil around, flipping pages of a notebook back and forth. There are two solutions. First, take nothing to the lectern you don’t absolutely need. You won’t have use of a writing instrument at the lectern. If it is on the lectern, you will almost certainly pick it up, and if you pick it up, you will waive it around. For a notebook to be useful (assuming it can be), you will have to flip pages, which is distracting. It is much less distracting to use a tablet on which you just touch the edge or brush your finger to change pages. Second, practice speaking from a real or improvised lectern to some friends or colleagues and ask them to immediately intervene every time you start using a distracting gesture.

A Final Word
Many of the strategic considerations discussed in this article are not unique to appellate practice. Simplicity, focus, and defensibility are elements common to all advocacy, regardless of forum. Story-telling is highly effective in capturing the attention of any audience. But there are two strategic aspects of appellate practice that are unique: the challenge of applying those elements in a pressurized, highly structured arena, and the critical imperative of controlling the field of battle.

Barry Richard is a shareholder with Greenberg Traurig in Tallahassee, concentrating his practice in the fields of complex commercial litigation, constitutional law, and appellate law.