In my last blog post, I opined that most lawyers use appellate oral argument to repeat what’s in their briefs—and this is usually a waste of time, a waste of the client’s money, and a wasted opportunity. The judges have already read your briefs. Those arguments either worked or they didn’t. If they did, you already won. If they didn’t, repeating them orally is unlikely to change the minds of strong-willed people who have already thought about the case and discussed it with their staff attorneys and fellow judges.
So what can you do to make oral argument worthwhile—“worthwhile” as in “adding to your chances of winning the appeal”?
Here’s my approach.
I read the trial court opinion, if there is one. Might be a statement of decision, or perhaps an order on a crucial motion. Then I read the three briefs filed in the appellate court: appellant’s opening brief, respondent’s brief and appellant’s reply brief. I don’t read the cases or parts of the record (though I might do this later).
Since it’s been many months since I wrote and filed my last brief in the case, I read them to refresh my memory of the key facts, issues, and arguments. But I’m looking for something else too. I’m looking for a single, short, powerful theme that sums up the justice of my cause and might turn around a court that is leaning against me. It’s important to develop a theme for the brief, but it is crucial for the oral argument. The theme goes to the guts of the case, and I use it to hit the judges in the gut.
A member of our appellate team, Presiding Justice (ret.) James Ardaiz (from California’s 5th District Court of Appeal), says this about oral argument: “You have to make the judges blink. Most of all, they want to do what is right. They don’t like upholding a case which has a result that doesn’t seem right to them.”
My theme might not change the mind of the judge who authored the draft opinion, because she is most committed to her work. But there are other judges on the court. My goal is to hit at least one of them in the gut. After the argument, the judges will confer. I want that one judge to say to the others, “Hey, I now have some second thoughts about this case. Maybe we should reconsider.” If I can turn that one judge into my advocate behind the closed doors, I’ve made the most of my oral argument.
If I can find a terrific theme now, why didn’t I find it when I was writing the briefs? Well, maybe being away from the heavy immersion in the case for a few months gave me a new perspective. Or maybe the theme is in the briefs, but it’s kinda buried in a mass of facts and legal arguments. Or maybe I can now put a new twist on it, something that makes it more dramatic.
Your theme should be about justice, not legal technicalities. Appellate justices say they don’t want to hear “jury arguments.” So, don’t go on about how great your client is and how awful the other guy is. But don’t avoid dramatic pitches just because they include some emotion.
Only rarely will a theme involve case law. The judges have already reviewed the cases, and oral argument comes too late to affect their views on what is “binding” and the like. The theme is usually about injustice, not law. Justice Ardaiz again: “If you are an appellant and you can’t convince the judges that the error affects the credibility of the result, then you are probably talking to people who are just waiting for you to finish talking.”
My best themes emerge from the facts of the case. There’s something about the facts that makes it very unfair to rule against my client.
Here’s an example. Some bank officials persuaded our client (an older woman) to give them $2 million to invest for her, with promises of large monthly income as well as appreciation. They put her money in risky, high tech stocks, and gradually the value of her investment dropped—finally to about $400,000—when she sued. “Too late,” said the bank, “she should have realized from her monthly statements that something was wrong, so the statute of limitations ran.” The trial court agreed, and I was brought in to handle the appeal.
Defendants relied on cases holding that one must act as a “reasonable investor” in deciding whether “storm warnings” suggested that the defendants lied about the investment. She had testified that she “didn’t know a stock from a bond,” and defendants argued that she had not behaved reasonably. My briefs used the few cases from around the country that supported a lower test, but the “weight of authority” did seem to be against me.
Before oral argument, I read the briefs again and I got an idea. The 9th U.S. Circuit Court of Appeals panel assigned to hear the case consisted of three older men. There was a pretty good chance that at least one of them had a wife that also “didn’t know a stock from a bond,” and there was a pretty good chance that one or more of the judges thought their spouse would outlive them.
Thus emerged my theme: “Your honors, there are thousands of older wives in this country who know very little about finances, because their husbands have handled the family’s investments. When their husbands pass away, do we want to interpret federal law to declare ‘open season’ on them by vultures who call themselves ‘financial advisors’? Did Congress intend to protect only ‘reasonable’ investors, or also the most vulnerable?” I opened with this theme, and I repeated it by working it into my answers to the judges’ questions.
Did it work? We did win a reversal. See Betz v. Trainer Wortham & Co., Inc., 519 F.3d (9th Cir. 2007). But was that because of my oral argument? I can’t be sure, but after I argued, my opponent got up to defend the trial court ruling, and the panel angrily jumped on her with my theme. In any event, my theme gave us the best chance of turning around the panel if they came to the argument predisposed to rule against me. And that’s the most you can hope for with oral argument.
After you come up with a powerful theme, (1) lead off with it, then (2) use it in your separate legal arguments, and (3) weave it into your responses to judges’ questions whenever you can.
If the theme doesn’t work, don’t be surprised. There was probably nothing you could have said at oral argument that would have upended the judges’ predispositions. But you’ll have given it your best shot.
The bottom line: be bold. Find a strong theme, then deliver it with conviction. It’s probably your only chance to make oral argument worthwhile.
by M.A.T. Legal Director Myron Moskovitz