A good appellate oral argument requires good preparation. But good preparation requires more than just reading everything related to the case. You need to foresee what might happen at oral argument, then structure your prep around it.
Develop a Theme.
The judges have read the briefs and thought about the case, so their minds are pretty well made up before the oral argument begins.
I believe the only chance—and it’s a small one—to turn them around is to present a powerful, short theme showing that justice requires a ruling for your client. Usually, the most effective theme will focus on the facts and policy, not on case law. (I rarely mention cases unless asked.)
Prepare to Address the Judges' Concerns.
It can be distressing to write a good brief and later receive an adverse decision that is based on reasons to which you had a good response, but did not put in your brief because you did not know how the judges would see the case. Wouldn't it be nice if you could have talked to the judges for a few minutes, find out their views, and respond to them—before they voted and wrote their decision?
You have that chance—at oral argument.
Oral argument gives you an opportunity to find out what concerns the judges, so prepare with that in mind. Instead of preparing to deliver a lengthy speech or cover all arguments in your brief, get ready to engage the judges and address their concerns.
For this reason, never read a pre-written speech or your brief to the justices. They don't like it, and they won't hear a word you say, because the whole time they will be thinking "Why is this lawyer reading to us instead of relating to us?".
A member of my appellate team, Presiding Justice (ret.) James Ardaiz (from California’s 5th District Court of Appeal, in Fresno), says: “Appellate judges hate it when you stand and read your brief. They may be polite and simply sit there or they will be abrupt but they won't be listening.”
How to Prepare for Questions.
Questions are windows into the judge's mind. Usually, they are asked not out of idle curiosity—they really matter.
I don't answer a question in isolation, out of the context of the appeal. In fact, I treat pretty much every question as a statement: "Counsel, I am going to rule against you for this reason." If I can’t answer it in a way that persuades, I’ll probably lose the appeal.
So I try to anticipate questions — and think of answers that persuade.
Likely types of Questions.
- Questions about the record.
Judges know a lot of law, but only rarely do they know the record in your case better than you. Don't try to memorize the entire record, but have key parts of it marked, tabbed or indexed so you can quickly find anything the court might ask for.
Since my briefs cite the relevant parts of the record, I find it easier to tab my briefs and just refer the court to the page of my brief where I cite the record.
- Questions about Procedure.
Be especially prepared for procedural questions, such as "But was there an objection to that evidence at trial, counsel?" You are probably most interested in the substantive questions of law in the case, but often the judges will seek a way to duck those issues by holding that they were not properly raised or preserved for appeal.
In federal appeals, jurisdictional questions are frequent and crucial. Federal judges often try to avoid reaching the merits of cases by invoking procedural rules
- Questions about Cases.
The judges might ask you about some of the major cases relied upon—especially the facts. After a lawyer invokes a case during oral argument, the next question he will often hear is "And what were the facts of that case, counsel?" This judge wants to see if you are stretching the language of the case beyond its true holding, or if there were facts that justified the holding but which are absent or different here. So be prepared not only to recite the relevant facts of the cases you cite, but also to explain why each case is not distinguishable from yours.
Do not take up valuable oral argument time telling the court about minor new cases. You are there to win, not to educate the court with trivia.
- Questions about Statutes.
Appellate judges can and will distinguish cases to arrive at what they deem a just result. But out of deference to democracy, they are less willing to play fast and loose with statutes.
Bring key statutes with you to oral argument. Don't be surprised if some judge asks you about the specific words of a statute.
Think of Answers to Likely Questions.
Write a list of every potential weakness in your case. List every reasonable argument your opponent made. List every reasonable argument your opponent could have made. When you finish writing your list of weaknesses, think of answers to each one.
When you go in to argue your appeal, you should know every potential argument against you—and your answer to it—so well that you are ready for just about any question. Your self-assurance will improve the quality of your whole argument, as well as ensure that your answers to the questions are the best you can give.
Prepare a very short summary of the facts.
In many appellate courts, the presiding judge will give a standard speech to the assembled lawyers: "We are familiar with the facts of each case, so don't summarize them for us." Nevertheless, a one sentence summary will help the judges reorient their brains from the case they heard just before yours. "As the court will recall, this case involves …"
Prepare an Outline.
The outline of your oral argument should be shorter than the Outline of Argument in your brief. If the judges ask questions, your allotted time will pass quickly. So select no more than two or three major issues for your outline. You cannot reasonably expect to get through more. Often, you won't get past one.
Select the issues on which the case is most likely to turn. This may include the strongest arguments against you as well as the strongest ones in your favor. Often, for example, it is essential that you address your opponent's argument that the alleged error was "harmless error."
Select issues that tie into your theme. The theme is your main instrument for turning around judges who are predisposed to rule against you.
If there are a few key facts that help your case, work them into your outline, even if you already included them in your recitation of facts.
Prepare Policy Arguments.
Your best chance of influencing the court is with policy arguments. Show how certain fundamental values likely held by the judges will be affected by a proposed rule. Explain how a proposed rule might operate in the "real world," i.e. how it might affect the day-to-day practices of courts, administrative agencies, businesses, police officers, etc. These arguments should fit into your theme.
Examples and Analogies
Think of examples and analogies involving lawyers or judges and common experiences people have. If your case involves a property issue, think of an example involving renting a law office or buying a home. If your case involves the police stopping a car, discuss how a judge or lawyer might react in a similar situation. (Do not, however, ask the judges directly, "How would you feel if you were stopped?" Judges don't like being questioned.)
When you do this, you will often be amazed at how the judges light up. After hearing a calendar full of dull soliloquies on case law, most judges will be delighted to hear and discuss something down-to-earth, which reminds them of things that have happened to them.
When you have selected the policy arguments, examples, facts, and analogies to include in your outline, list the best ones first. This ensures that, if time gets short, you will have given the court your best arguments.
Preparing the Respondent's Outline.
If you represent the Respondent, you should also prepare an Outline, following the above principles.
As Respondent, however, you will have the advantage of seeing the judges' reactions to Appellant’s argument before you argue, and this should affect your decisions as to what points to emphasize. To keep your presentation smooth, these points should be worked into your outline just before you get up to argue.
by M.A.T. Legal Director Myron Moskovitz