13:48 PM

Oral argument: Where the wheels can fall off an appeal

Vol. 75, No. 1 / January-February 2019


“There is no place to hide when one stands at the lectern before the judges; it truly is a lonely spot.”[2]

Marshall L. Davidson III[1]

“There is no place to hide when one stands at the lectern before the judges; it truly is a lonely spot.”[2]

At one time, lawyers had an unlimited allotment of time to orally present their cases on appeal. As a result, arguments in the appellate courts went on for hours and even days. Not anymore. Today, lawyers appearing in most of the nation’s appellate courts, both state and federal, have 30 minutes or less to argue, if oral arguments are permitted at all. Accordingly, making every minute stand for something meaningful is essential. This article pursues this sometimes-elusive reality of appellate advocacy and offers recommendations for lawyers to consider when preparing for and participating in oral argument.

As experienced lawyers know, oral argument is fraught with potential pitfalls for appellants and appellees alike. A compounding factor is the potential decisiveness of oral argument and the pressure that goes with it. As observed by one lawyer, “several years of litigation, scores of depositions, warehouses of documents, hundreds of thousands of dollars of expense, and millions of dollars in controversy may depend on how you use 20 minutes at the lectern.”[3] So true.

Bearing in mind some practical considerations, some obvious and some perhaps not, may help minimize the risks inherent in oral argument:

Preparation Considerations

Prepare in advance.

Like most things in the legal realm, the key to presenting an effective oral argument is meticulous preparation. You might know the case backward and forward, but unless you are primed to face at least three prepared judges who are looking for a fair, and probably narrow, way of resolving the case, not to mention one anchored in the law, the opportunity to seal success might be lost. Put another way, you may convert a winning case into a losing one without adequate preparation.

Study the briefs and the record.

As the oral advocate, you must be intimately familiar with the briefs, the authorities cited in those briefs (including the brief filed by the opposing side), and with the record. Only then can the case be presented to the appellate court in an organized and persuasive manner. Explaining that you do not know the answer to a question posed during oral argument because you did not handle the case in the court below is not likely to be well-received if thorough preparation would have yielded the answer to the question

Outline the argument as a part of the preparation process.

Outlining the argument forces you to organize the presentation and give thought to each part of it. The end result should be a smoother, more insightful, and thus helpful, presentation.

Practice the argument.

All attorneys, regardless of experience, benefit from practicing the argument out loud. Practicing will help highlight elements such as points of emphasis, timing, the argument’s particular vocabulary, and the flow of the argument in general. Practicing can make a significant difference in how well the presentation is received.

Update the research and authorities.

Check the cases cited in the briefs to determine whether there have been any developments in the law since their filing. Several months have probably gone by between the time the brief was filed and the argument date, enough time for the law to have changed. Nothing could be worse than getting to oral argument only to have a judge or opposing counsel point out that the key case you were relying upon has been modified or overturned.

Observe beforehand.

If cases are being argued before your case, sit in the courtroom and observe. Doing so will provide insight into whether that particular group of judges frequently asks questions or none at all. If the court is asking questions, you will have the benefit of knowing whether they tend to be about the record, the law, or about future ramifications of the court’s ruling. You will also get a sense of the court’s general demeanor, as some judges, like some lawyers, are disarmingly friendly, some are impatient, and some enjoy engaging in a Socratic-type discussion. Merely watching will reveal what you are likely to face.

When the Case Is Called

Be on time.

Do not miss the initial call of the docket because it is not unusual for cases to be switched around so that, for example, the fourth case listed on the docket is argued second. Also, important announcements, not the least of which is the extent to which the judges are familiar with the record or briefs, are usually made at the beginning of the session. This information will be missed if you are even a minute or two late. And if you expect to be late, call the clerk so that the panel can be notified. Leaving the court in limbo will not endear you to the judges.

Make a strong initial impression.

When it is your turn to speak, walk to the podium without hesitation, adjust the microphone so that it is nearest you, and begin immediately. Stay close to the microphone because arguments are usually recorded and some judges or staff will listen to the recording while working on the opinion.

Inform the judges of first-time appearances.

If it is your first occasion to argue before an appellate court, let the judges know that at the outset. Although questions will likely still be asked, their nature might be a bit gentler than they would otherwise.

Give a synopsis of the argument.

After introducing yourself and reserving time for rebuttal, provide a short, concise outline of the points to be developed. Giving the court a roadmap at the beginning provides an analytical structure that helps the judges follow the argument, enabling them to defer questions until the appropriate time if they choose.

3. Substance of the Argument

Relay key facts.

Because the law is not made in a factual vacuum, the judges will want to know what pitted the parties against one another. Do not assume that all members of the panel have read the briefs, although most do. Some judges, like some lawyers, are more prepared for argument than others. It is safe, however, to assume that most members of the panel have read the briefs or at least a bench memorandum prepared by a law clerk. Regardless, it is a good idea to briefly relate the key facts and history of the case before launching into the argument. A word of caution, however: stick to the crucial elements of the story. It is easy to dwell on nuances that will not make any difference in the outcome and, before you know it, a large chunk of your time has elapsed.

Lead with strength.

Make the strongest points first to draw the judges’ attention to them and to ensure those points are not omitted if time runs out. If a party cannot win on their strongest arguments, it is unlikely they will succeed on the weakest ones.

Narrow the focus.

Adopting a shotgun approach to the argument will obscure issues of significance and clutter an otherwise effective presentation. It may help to anchor the argument around one or more of the following themes depending on whether the court is a law-making court or an error-correction court: (1) the lower court’s decision relied on erroneous facts, (2) the lower court’s decision relied on erroneous conclusions of law, (3) the lower court’s decision misapplied the law to the facts and reached the wrong result, or (4) the law should be changed.

Blend the law with the facts.

A common mistake in both briefs and oral argument is the failure to provide a clear legal analytical path for the court to find in favor of one side or the other. This is precisely what the judges must do in writing the opinion, so parties should show them the way. Often at oral argument and in briefs, the lawyers tell the factual story, recite the law, and then declare victory. The most effective appellate advocates include the crucial step of weaving the factual story into the law like a hand in a glove and engaging in an analysis that points the way to a particular result. This is the hardest part of both brief writing and arguing orally, but it is the most important part. Lawyers, even experienced ones, stumble here.

Address the impact of the case on the law.

This is especially important when arguing before a court of last resort or when dealing with an issue of first impression, as this is certainly something the judges are thinking about. And, if appearing in a court of last resort, it may be helpful to bear in mind that the court probably took the case to clarify the law, not merely to correct an error that has no real effect on the precedential value of the law.

Handling Questions

Answer questions thoughtfully and deliberately.

Attorneys who win or lose cases during oral argument often do so through their responses to questions from the bench. The importance of properly handling questions cannot be overstated.

Anticipate questions.

While it may not be possible to foresee every question that might come from the court, as questions range greatly in form and substance depending on the composition of the appellate panel, most questions generally center on the strengths and weaknesses of each side’s case, both factual and legal. Lawyers are commonly asked for their response to the best argument made by the opposing side. Questions of this type can and should be anticipated. Also, if arguing in a court of last resort, expect questions about how the court’s decision may fit into the larger scheme of its jurisprudence. Anticipating these types of questions will help formulate answers beforehand, which means the responses are more likely to be accurate, insightful, and helpful to the judges.

Welcome questions.

Questions from the bench are indicative of interest and should be welcomed. The resulting discussion provides insight into the case that cannot be obtained from the briefs alone and allows the lawyers to provide clarity to aspects of the case that may be unclear to the judges.

Answer all questions.

Listen to each question carefully and stop speaking immediately when a judge interjects a question. Do not talk over the court. If a question is unclear or confusing, say so and it will be rephrased. Likewise, if the answer to a question is unknown, indicate that in a straightforward manner instead of feigning an answer and leaving an unfavorable impression. It is refreshing to occasionally hear a lawyer say “That’s a good question, and I’m unsure about the answer.” If the question is potentially outcome determinative and the answer is unknown, consider offering to file a supplemental brief addressing it.

Answer each question directly followed by an explanation.

Remember, the question the judge is asking may be the very thing he or she will be talking about in conference right after the argument concludes. Avoid responding by saying, “I’ll get to that in a minute.” If the court is asking the question now, it is interested in an answer now.

5. Mechanics and Delivery

Maintain the proper demeanor.

Appellate proceedings are formal affairs, so be serious and polite at all times. Counsel should never lose his or her temper or display annoyance, no matter how off-base the questions may seem or how badly opposing counsel seems to have distorted the record or the law. And if two judges are talking or writing notes to one another, as they sometimes do, ignore it and keep speaking unless directed to stop. The other judge or judges are still listening and the recording is still on.

Mute reactions.

Avoid reacting visibly or audibly to your opponent’s presentation, so refrain from sighing, head-shaking or eye-rolling. Patiently wait your turn to speak and respond accordingly, without irritation or sarcasm. Some lawyers forget they are always “on” while in a courtroom, regardless of whether it is their turn to speak.

Avoid reading extensively from the briefs or other sources.

You are not there to deliver a speech read from a script. When a lawyer starts reading, some judges view it as an open invitation to start asking questions.

Remember basic speech techniques. Speak loudly and with your head raised so that your voice carries, especially if the panel consists of more than three judges, as the ones on the end are off to the side of the podium. Also, speak slowly, as the tendency will be to speed up due to nervousness or excitement. And maintain eye contact with the judges, as oral argument should be a conversation with the court.

Stand up straight, do not move around, lean on the podium, put your hands in your pockets or jingle keys or change.

Nervousness will manifest itself with these distractions, so be sensitive to them.

Electronic devices.

Turn them off.

6. Cautionary Considerations

Take the high road with difficult judges.

At some point, every lawyer who litigates on appeal faces a judge who seems antagonistic to his or her position or is just plain difficult. For example, a judge once interrupted an argument I was making with “Counselor, as far as I’m concerned, you are barking up the wrong tree.” When encountering a judge who seems hostile to your position, take the high road and be respectful. Being confrontational or sarcastic is ill-advised and, often, counter-productive.

Be careful with concessions.

Some appellate judges will use oral argument as an occasion to seek concessions from the parties as a way of narrowing the focus of the dispute and making it easier to decide. Because of the recording, there is a record of any concessions, so be careful since we all say things when we are nervous or put on the spot that we would not have said after an opportunity for reflection.

Avoid exaggerations.

Do not exaggerate the facts and stay away from extreme or unreasonable claims or absolute statements; otherwise, the judges and opposing counsel are given something to seize upon. It is rare that something is always this or never that.

Refrain from purely emotional pleas unanchored in the law.

Such approaches do not move appellate courts. Save the fiery rhetoric for the jury.

Avoid personal criticisms.

Being unduly harsh on the other side is wasted effort because it does nothing to persuade the court that it should adopt your legal analysis. Moreover, being overly critical or disrespectful of the lower court judge or judges is never a good idea. Personal attacks are often an indication of a legally weak cause.

7. Sticking the Landing

Exercise caution with rebuttal.

Although rebuttal can be important because it is the court’s final impression of the case, the danger of rebuttal is that returning to the podium gives the judges an opportunity to ask more questions. Thus, unless it is necessary to rebut something specific from the appellee’s presentation, counsel should tell the court he or she has nothing further even if time has been reserved for rebuttal. Many lawyers who return to the podium think better of it afterward.

Conclude with a summary.

End by briefly summarizing the most important points and tell the court what relief is being sought. When there is nothing of substance left to say and no further questions, counsel should simply thank the court and end the presentation even if time is left.

Be flexible.

Oral arguments are not under counsels’ complete control and, unlike the briefs, tend to jump from topic to topic in a disjointed fashion. Rather than allowing the free-wheeling nature of the occasion serve as a point of frustration, go wherever the conversation ends up, weaving your key points into the discussion along the way. Handling the unpredictable nature of oral argument is something newer lawyers in particular struggle with.

Mastering these elements of oral argument takes preparation, practice and attention to detail. It also takes experience. But doing so will separate a party’s presentation from many on the court’s docket.

Reprinted with permission from the November 2017 issue of the Tennessee Bar Journal, a publication of the Tennessee Bar Association.


Marshall L. Davidson III

1 Marshall L. Davidson III is presiding judge of the Tennessee Workers’ Compensation Appeals Board. A graduate of the University of Tennessee College of Law and member of the Law Review, he later worked as a law clerk for the Tennessee Court of Appeals and the Tennessee Supreme Court. Davidson then spent time in private practice handling civil and criminal cases before serving as a staff attorney for the Tennessee Supreme Court for 22 years. He has also served as a judge advocate general officer in the U.S. Army Reserves, taught at the collegiate and law school levels for many years, and has written numerous law review and bar journal articles about appellate litigation and other legal topics. He is a former winner of the Tennessee Bar Association’s Justice Joseph Henry Award for Outstanding Legal Writing.

2 Mark R. Kravitz, Written and Oral Persuasion in the United States Courts: A District Judge’s Perspective on Their History, Function, and Future, 10 J. App. Prac. & Process 247, 265 (2009).

3 Gary L. Sasso, Appellate Oral Argument, Litigation, Summer 1994, at 27.