Nearly 50 years ago, John W. Davis aptly commented that there would be scant occasion to listen to lawyers if appellate judges would divulge the secrets of oral argument. "[S]upposing fishes had the gift of speech, who would listen to a fisherman's weary discourse on flycasting?" The Argument of an Appeal, 26 ABA Journal 895 (1940). Two generations later, the fish have begun not only to speak, but also to give detailed advice to struggling flycasters. Appellate judges have furnished the bar with speeches, articles, and even books containing practical tips and insights. Consider, for example, the advice of the Justices of the Supreme Court of the United States.
In a recent television program commemorating the constitutional bicentennial ("This Honorable Court," WETA, 1988), several of the Justices provided a behind-the bench view of oral argument. Justice Scalia, one of the Court's most active questioners during oral argument, said he "was quite surprised at how much difference it makes." The Justice noted that the argument is both a colloquy between the Court and counsel and among the members of the Court: "It isn't just an interchange between counsel and each of the individual Justices. What is going on is also to some extent an exchange of information among the Justices themselves. You hear the questions of the others and see how their minds are working, and that stimulates your own thinking. I use it," he added, "to give counsel his or her best shot at meeting my major difficulty with that side of the case. 'Here's what's preventing me from going along with you. If you can explain why that's wrong, you have me.'"
In the same program, Justice White remarked that oral argument operates in effect as a preliminary conference for deciding the case: "All of us on the bench [are] working on the case, trying to decide it. . . . They think we are there just to learn about the case. Well, we are learning, but we are trying to decide it, too." In other words, "it is then that all of the Justices are working on the case together, having read the briefs and anticipating that they will have to vote very soon, and attempting to clarify their own thinking and perhaps that of their colleagues. Consequently, we treat lawyers as a resource rather than as orators who should be heard out according to their own desires." White, "The Work of the Supreme Court: A Nuts and Bolts Description," October 1982 N.Y. State Bar J. 346, 383.
How does a lawyer make a positive impression in this conference environment? Chief Justice Rehnquist offers an answer in his recent book, The Supreme Court 281 (1987). He describes the "All American oral advocate" in the following terms: "she will realize that there is an element of drama in oral argument. . . . But she also realizes that her spoken lines must have substantive legal meaning. . . . She has a theme and a plan for her argument, but is quite wiling to pause and listen carefully to questions. . . . She avoids table pounding and other hortatory mannerisms, but she realizes equally well that an oral argument on behalf of one's client requires controlled enthusiasm and not an impression of fin de siecle ennui." Thus, the difference between live argument and a written brief "may perhaps be summarized by the difference between a preview of a movie and the movie itself. The preview consists solely of scenes form the movie, but the preview selects dramatic or interesting scenes that are apt to catch the interest of the viewer and make him want to see the entire movie." Rehnquist, "Oral Advocacy: A Disappearing Art," 35 Mercer L. Rev. 1015, 1024-1025 (1984).
Chief Justice Rehnquist's predecessor, Warren E. Burger, stressed the need for thorough preparation in presenting appellate arguments: "Oral arguments, which help the Justices get quickly to the core — the jugular — of the legal issues call for a high degree of skill and careful preparation. The Supreme Court is no place for inexperienced or ill-prepared advocates; such advocates provide little help to the Court; they do a disservice to their clients — and to themselves." At the same time, Chief Justice Burger warned against attempting to read to the Court from a rigid "set argument." He urged counsel "to tell us about the case in your own words." "Foreword, Conference on Supreme Court Advocacy," 33 Cath. U. L. Rev. 525, 527 (1984).
These comments from the bench place the oral argument process in a clear light. Like their brethren in most appellate courts, the Justices of the Supreme Court view the argument, not as an occasion for speeches or a game of 20 questions, but rather as an initial conference convened to decide the case. Counsel is invited into the conference for two purposes: to serve as a resource providing information needed to clarify the thinking of the Justices; and to bring an organizing theme, emphasis, and note of drama needed to marshal the information in a meaningful way.
Preparing Flexible Arguments
That, of course, is a tall order for any lawyer. It is hard enough to make an oral presentation that is legally sound and also dramatic and interesting. It is still more difficult to get to the heart of the case while providing spontaneous answers to tough questions posed by a "hot" appellate bench. To accomplish both goals simultaneously — and in a half-hour or less — is a daunting task.
And yet it is a task that cannot be shirked. Who has not witnessed the embarrassing futility of the appellate lawyer who merely plays the part of a speech maker or off-the-cuff commentator? The lawyer bent on delivering a carefully drafted speech is quickly disconcerted by interruptions and questions that reduce the speech to a shambles. The spontaneous commentator, despite his quiz-show ingenuity, thrusts and parries with the bench but fails to guide the discussion to any discernible goal. The rough-and-tumble conference environment of modern appellate courts requires a flexible oral argument, in which answers to questions and prepared remarks blend into a single stream of discussion that produces an overriding understanding of how to decide the case properly.
A flexible argument suitable to the conference environment of modern appellate courts requires special preparation. To begin with, the prepared argument must have an accordionlike capacity. It must expand or contract to accommodate unpredictable amounts of questioning. Lawyers with 30 minutes of allotted time often prepare an argument that occupies ten minutes and an alternative argument that occupies 20. One of these alternative formats can be chosen depending on whether questioning is light or heavy. An adjustable argument can also be fashioned by outlining the presentation and then bracketing points and subpoints that are expendable if questioning becomes intense.
Bear in mind that the first few minutes of argument are the most likely to include a peaceful interlude for presentation of affirmative points. It is therefore essential to plan the opening of the argument to set forth the most compelling grounds for a favorable decision, without elaborate recitations of facts or procedural history. These opening remarks must, of course, focus on the most convincing reasons that can be advanced in favor of a party's position. They must be simple enough to be explained in a few sentences and understood through the oral medium. In the words of Chief Justice Burger — and many others — go for "the jugular."
Going for the jugular means not only going for the most important reasons for victory but also stripping the case down to its essentials. Give the judges the few dispositive ideas they must take with them into the voting conference.
Practice your exposition of these points on your colleagues and friends to confirm that it makes good common sense and is intuitively appealing.
A brief description of the points to be elaborated in the course of the argument is helpful at the outset, but this should not be carried too far. One attorney who ambitiously described the many subjects he hoped to canvass during his argument recently met with the following humorous query from the Chief Justice: "Will you be entertaining questions?"
The points in a flexible argument must be not only expandable and contractable, but also interchangeable. During the heat of argument, the court inevitably will disrupt the flow of your outline by asking questions about subjects you hoped to reserve for later treatment. Questions that emerge out of order must be dealt with as they arise to avoid antagonizing the questioner. This requires you to become so familiar with each issue in the case that you can take it up on the spur of the moment despite the prearranged structure of the argument. The best means for acquiring this flexibility is practice. Moot court sessions and freewheeling discussions with colleagues will equip you to take up issues outside of their preconceived order. But do not totally jettison your argument plan. If the coherence and optimal arrangement of points can be preserved, try to do so.
Perhaps the most important step in preparing a flexible presentation is anticipating questions and devising responses that interlink with affirmative arguments. Advance scouting of questions lays the intellectual groundwork for a weaving together of planned remarks and responses to questions. This helps avoid awkward moments in which counsel gropes for the lost thread of the argument after sharp questioning from the bench.
In trying to predict questions from the bench, keep foremost in mind the familiar, commonsense concerns of the court:
- What is the case about? (What holding do you want? What rule do you want the court to adopt to justify that holding? Is there any other rule that would satisfy you?)
- How would your rule work? (What are the practical consequences of the rule? How would it change current practices? Can it be administered?)
- What will the rule mean in future cases? (How far does your rule go? Where does it meet a limiting principle? Will lower courts have trouble applying it?)
- Can the court do that? (Is there a legally respectable argument for the rule based on traditional principles of interpretation? Is it consistent with what the court has said before? Does it conform to governing statutory or constitutional language and history?)
- Why should we do that? (What values and interests would be advanced by adoption of the proposed rule? Would opposing values and interests be fairly accommodated?)
After anticipating questions in these categories, try to develop simple and commonsense replies that are convincing on an intuitive level even to a layman. Many lawyers find it helpful to jot down the questions and answers and use them as aids throughout the period of argument preparation.
The briefs and opinions below should be reviewed with care to spot difficult questions. Take off your advocate's hat and formulate questions that relentlessly expose the weaknesses in your position.
In particular, use your best imaginative efforts to anticipate hypothetical questions — questions about future cases presenting similar problems that the appellate court will want to consider when drafting its opinion. Appellate judges may besiege counsel with hypothetical questions, some of them long, complex, and not easily grasped. They often require a lawyer to range a great distance from the facts before the court. Even if you do not anticipate the very questions that ultimately arise, the mental process of grappling with a host of hypothetical questions before argument will improve your ability to respond spontaneously to such inquiries.
A key component of preparation for questions from the bench is the familiar process of studying the record below, the cited authorities, the legislative history, and the scholarly commentary. This part of argument preparation is time-consuming and tedious. But it serves you well by permitting quick and accurate communication of information called for by the court, thereby enhancing your usefulness and elevating your credibility in the fast-moving conference environment.
Once affirmative arguments are identified and outlined, questions have been anticipated, and transitions between prepared remarks and answers to questions have been considered, you must practice the argument to improve its clarity and impact. Rehearsals permit you to cut out fuzzy detail, long-winded explanations, lengthy quotations, and detailed case discussion, and provide good practice in shifting smoothly between prepared comments and responses to questions. They also permit you to prune your argument to meet time limits.
A key step in preparing a flexible argument is predicting questions from the bench and devising responses.
Practice the argument both in the solitude of your office and before a moot court panel. Many lawyers argue to a moot court several times. First let the panel hear your argument without interruption to assess its strength and clarity. Then rehearse with your panel without time limitation to make sure that you can present affirmative points while responding to all questions that emerge. Finally, practice the argument subject to the time constraints of the actual argument.
In preparing for argument, bear in mind the differences between the presentation of the appellant and the appellee. The appellee, in addition to presenting prepared remarks and answering questions, must respond in short measure to points made by opposing counsel and to questions discussed in the preceding colloquy with the bench. Even the appellee, however, must have a prepared outline of essential affirmative reasons for ruling in his favor. It is not enough merely to rebut the points made by opposing counsel.
All Kinds of Questions
During the argument itself, the key to efficient integration of prepared comments with answers to questions is making snap judgments about individual questions and the appropriate scope of your response. Questions from the bench come in all forms and varieties: They range from the difficult to the obvious, from the subtle to the whimsical. Some of them are good springboards for affirmative arguments; others are sideshows that call for accurate, but brief, answers and a prompt transition to more important subjects. Here are some examples:
Questions that go to the heart of the case. As noted by Justice Scalia, some appellate judges ask questions that go to the central issue in the case and that are critical to their votes. The answers to such questions not only may determine the vote of the questioner, but also may sway the judgment of others on the panel who share the same point of view. If the questioning judge has an erroneous view of the record, the governing law, or of your submission, this kind of question affords a golden opportunity to set the matter straight. First provide a direct response to the question. Then weave in more general affirmative points from the outline of prepared remarks.
Background questions. Many questions during argument simply require a clarification of a record fact or some finding or conclusion in the courts below. Other questions manifest curiosity about matters such as the background of the litigation or the votes of the judges below. These questions require an accurate answer, but it is inefficient to dwell on them. Move along without delay.
Fencing or debating questions. Appellate judges sometimes engage in extended debates with counsel that may or may not relate to the central issues in the case. You cannot, of course, cut off such debates, even if the issue seems tangential. By the same token, however, you need to avoid becoming bogged down in intellectually stimulating digressions while precious argument time ticks away. Give the best possible answer and find a tactful way to get back to the main points.
Humorous questions or observations. Enjoy the remark and get back to business. While appellate judges may offer a humorous observation or question, attorneys ordinarily should refrain from introducing jocular comments of their own. As often as not, attempts at humor fall flat, and in most instances are a waste of limited argument time.
Humorous remarks by lawyers usually fall flat and waste precious argument time.
Irrelevant questions. It is not unusual to hear a question that sounds irrelevant. But it is not for counsel to call it that. Never display irritation over a question that seems beside the point. Give a polite answer and suppress any annoyance.
Hostile questions. Assume from the beginning that some of the judges will present hostile or unfriendly questions. Do not be unnerved or disappointed. Tough questioning usually is an effort to test the soundness of a position, not necessarily a rejection of it. A hostile tone also may be a sign of frustration that the questioner is in the minority. Keep in mind that while one judge may be dissatisfied with a position or answer, a majority may be leaning the other way. Give a polite but firm response to the hostile questioner and interject affirmative contentions. Avoid a "cross-examination" environment, in which you concede negative matters but neglect to weave in positive considerations.
Friendly questions. Not all questions are hostile or unfriendly. A sympathetic judge may intervene with a friendly question or even a restatement of your position, which is designed to place the case in a favorable light. Ordinarily, such helpful reformulations should be acknowledged and accepted. On occasion, however, a judge may ask a question that is not quite accurate in its friendly implications. The best response is to accept the help but politely point out the mistake. For example: "I would agree with Your Honor's approach, but I think the main support in this situation comes from. . . ." It is not advisable merely to accept the help if it rests on a mistaken premise; the other judges will identify the fallacy and embarrass you for failing to do so.
Vital to your efforts to participate constructively in the conference environment and avoid unnecessary friction are a few simple rules of courtroom etiquette. The cardinal rule in dealing with all questions from the bench is this: Give a direct, nonevasive response. Inexperienced lawyers annoy appellate judges by evading questions — responding, for example, by saying "that presents a different case" or "that really isn't what this case is about." The court is well aware that its questions call for analysis of a point different from the point counsel is pressing. Yet it expects a straightforward answer.
In many instances, the questioning judge will ask for a yes or no answer. When that can be given — and it ordinarily can — you should do so. Explanation and elaboration can follow. When it is impossible to answer yes or no, briefly explain why and allow the judge to rephrase the question, or simply state: "The answer is yes, but my answer requires this qualification ___."
All answers must be concise and clear. Ordinarily, it will be difficult to include more than one or two sentences in a response. A hot panel will interpose a different question if you drone on too long. But never let eagerness to get back to a planned speech result in a back-of-the-hand answer. If the court has raised an important point and is willing to hear an extended response, counsel should not hesitate to provide it. An effort should be made to weave in affirmative points from your planned remarks as the answer unfolds.
Another potent source of annoyance is any attempt to postpone an answer. You cannot say "I have not yet come to that point in my argument." Interrupt your planned sequence and provide the answer. In some instances it is possible to give a concise answer on the spot, and then assure the court that you will elaborate after laying a bit of groundwork. When returning to the question later in the argument, be sure to link your elaboration to the earlier inquiry.
Confusion and irritation also result from failures by lawyers to listen carefully to questions from the bench. The object is not to blurt out a response to the question before it is finished, in the manner of a high school quiz show. Make sure that you understand exactly what the court is asking. If the question is unclear, the judge will recast it. Appellate judges are justifiably annoyed by lawyers who waste argument time by responding to questions that the court has not asked.
Many questions are difficult ones that put the arguing lawyer on the spot. It is futile to try to dodge these questions. They must be answered to the best of one's ability. It is permissible to say "I have not considered that variant of our situation," but you should then proceed to describe what factors are pertinent and give the best analysis of the proper outcome.
Judges frequently ask lawyers to make concessions during the course of the oral argument. Be careful in responding to these questions, because concessions made in open court can be used against you in deciding the case on the merits. Still, you cannot run away from concessions that must be made, and some concessions can actually improve a lawyer's credibility. This is particularly true of factual matters. For example, if a judge asks: "Isn't it true that your client testified ___?" an answer must be given in the affirmative if that is the case. In dealing with a question calling for a concession, it is essential first to answer the question, and only then explain why the conceded matter is not damaging. If a judge is disturbed that you are not making a concession that you must make, simply say "I do acknowledge Your Honor's point. The record shows ___. That, however, is not dispositive here because. . . ."
Even greater care must be used in dealing with questions calling for a concession of law. For example, an appellate judge may ask: "Wouldn't you agree that the result would be different if the facts were __?" If you are willing to stand on the distinction between your case and the variation described by the judge, you should answer in the affirmative. On the other hand, if it is not clear that the distinction is a dispositive one, or if your case is not greatly different from the hypothetical case, it is best not to concede the point at all. It is permissible to respond: "I wouldn't concede that this variation would produce a different result. Your Honor has, of course, described a far less favorable case for applying the principle we rely on, but it would still control because . . . ."
Because appellate courts must anticipate the future consequences of their decisions in the wide variety of cases arising throughout their jurisdiction, they are naturally concerned with the breadth of legal principles they announce. Be ready therefore for the question: "How far do you carry that principle? Would you apply it in the following instance: __?" Hypothetical questions such as this are a central feature of modern oral argument and, as previously noted, require substantial preparation and analysis in advance. Bear in mind that every principle has a breaking point; stated otherwise, every principle meets a contrary principle at some point. Be wary of presenting arguments that sound radical because principles are extended too far. In distinguishing a hypothetical situation, remember also that it is not enough merely to say "that is a different case." The judges know that. They want to understand where to draw the line and why.
Perhaps the most difficult problem of diplomacy faced by appellate counsel is the judge with a bulldog instinct for the weaknesses in your case and a disposition to wring concessions out of you without affording any opportunity to place the case in a positive light. Often, another judge will divert this colloquy by posing a different question that permits you to shift back to a more fruitful line of argument. In the absence of such relief, however, you must give the best answer firmly and politely, and attempt to steer the argument back on course by weaving in affirmative points. If it is necessary to disagree at the end of a colloquy, counsel should do so courteously: "With great deference, Your Honor, we see the issue in a very different light. In our view __."
An effective way to add spontaneity and interest to a reply or rebuttal argument is to return to important questions asked of opposing counsel, who provided wrong or inadequate information or failed to face up to the difficulties implicit in his position. For example: "Justice ___ asked Mr. ___ whether ____. He answered ___. In fact, however, this court's decision in ___ forecloses that contention and makes clear __." The argument should never turn into a fly-speck, point-by-point rebuttal, as opposed to a presentation of affirmative points, but a few well-selected responses of this kind will ensure that questions are adequately answered in areas of special interest to the court.
Appellate judges school lawyers in many ways. In addition to their extrajudicial commentary, they teach unforgettable lessons to all who attend oral arguments. Those who listen to a number of oral arguments not only gain an improved appreciation of the fine points from the performance of outstanding advocates, but also witness the harmful consequences of certain errors that are repeated with distressing frequency. The following mistakes spawn judicial annoyance, distraction, and simple boredom:
- Leading off the argument with a dubious or unnecessarily provocative contention that generates friction at the outset.
- Sticking inflexibility to a prepared speech when the court expresses interest in other areas, or — worse yet— reading from a text with eyes glued to the typed page.
- Failing to come to grips with the plain language of governing statutory, constitutional, or contractual provisions, or of controlling judicial precedent.
- Attempting to cover all of the points raised in the briefs rather than only a few of the most important.
- Racing through the argument at a rapid speed while judges struggle to absorb the points delivered.
- Using overstatement or exaggeration in describing record facts.
- Using an emotional jury argument or high-flown oratory.
- Bellowing at the judges in a stentorian tone of voice or, conversely, mumbling and muttering.
- Inflicting long delays while groping for page references, cases, or notes.
- Wandering around or slouching over the lectern, rocking back and forth before the lectern, using awkward gesticulations, pointing at the judges, jiggling keys, or delaying proceedings while drinking water at the podium.
- Using dry, monotonous speech, without any variation in pitch, pace, or volume.
- Displaying lack of respect toward the bench, including flippancy or overfamiliarity.
- Reading at great length from legislative history, opinions, statutes, regulations, or the trial record.
- Using distracting physical exhibits.
- Mischaracterizing the court's institutional role. For example, arguing in a constitutional case that "this court requires . . . ." as opposed to arguing that "the Constitution, as construed by this court, requires . . . ."
- Arguing to a particular judge that "Your Honor has held in the Jones case that . . . ." It is the court that has so held, in an opinion written by a particular judge.
Perhaps the most harmful errors of all are made by counsel while responding to questions. Some of these mistakes are matters of substance; others are matters of style. All of them can throw a bath of cold water on your presentation. Besides the problems mentioned earlier, such blunders include:
- Giving long-winded multiple-paragraph answers to straightforward questions, or relying on complex and incomprehensible factual descriptions in responding to questions.
- Bluffing about knowledge of a case, statute, or trial transcript.
- Indulging in repeated conferences with, or reviewing lengthy notes from, lawyers at counsel table prior to answering questions
- Disclaiming essential knowledge of the record with the lame excuse, "I didn't try the case, Your Honor."
- Giving fearful or timorous responses to overbearing questions, or displaying disappointment when questioning is hostile.
- Attempting to answer questions by propounding other questions back to the court.
It is little wonder that appellate judges, burdened with ever-increasing caseloads, are exasperated by the commission of these unnecessary blunders in case after case. By avoiding them, you will make yourself a welcome and effective participant in the conference environment of the modern appellate argument.