Appellate Adventures, Chapter 18: “How Can I Win at Oral Argument?”

Our story so far.

Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") granted summary judgment against Flash, rejecting Flash's claim that Topspin Tennis Club had breached its contract with Flash's client (tennis pro Debbie Dropshot) by firing her for flunking a drug test at a tennis tournament.

With the guiding hand of Patty Plato (his former law school professor), Flash weighed the likely costs and benefits of appealing the Bull's ruling -- and decided to go ahead. So -- with Plato's help -- he filed his notice of appeal, filed his appellant's opening brief, review the respondent's brief, and filed his reply brief. [See prior Moskovitz On Appeal columns.]

"All the briefs are in, professor, and I just received a notice from the appellate court asking if I want to waive oral argument. Any advice?"

Plato replied, "Some lawyers love to get up on their hind legs and argue, Flash, while others are kinda shy and prefer not to."

Flash was no wallflower. "I love it!"

Plato warned, however, "But your first priority should be your client. Think about how waiving might help or hurt your client.

"There are benefits to waiving oral argument. A waiver will save your client the expense of your preparing for and appearing at oral argument. And it will get you a decision sooner -- sometimes by a year or more.

"Of course, a waiver will cost you the opportunity to persuade the court. But usually there isn't much chance of that anyway. In California state courts, oral argument rarely changes the result. Because the law requires judges to render decisions within 90 days of 'submission,' our appellate courts normally don't set a case for oral argument until they have already drafted an opinion -- and at the end of oral argument, they 'submit' the case for decision. They might then change a few words in the draft opinion, but the bottom line ('affirmed' or 'reversed') usually stays the same.

"Nevertheless, judges do change their minds once in a while. Sometimes the issue is very close and they are genuinely undecided. Sometimes oral argument shows that they have misunderstood a crucial fact. And occasionally one of them has done all the work on the case and the others aren't that familiar with it until oral argument. But these are the exceptions, not what usually happens.

"A pretty good rule of thumb is this: unless you can think of a good reason to orally argue, you might as well waive it -- to save your client the expense and the delay. Most lawyers simply go over their briefs at oral argument. That's not a good enough reason to argue. The justices have read the briefs. The arguments in the briefs either worked or they didn't, so repeating them is usually a waste of time. You'd better come up with something new -- some way that might turn them around if that draft opinion is against you."

"Like what?" asked Flash.

Plato said, "If you're representing the appellant, often the only chance to turn the judges 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. When I argue, I rarely mention any cases -- unless asked.

"Your theme might not change the mind of the judge who authored the draft opinion, because she is the most committed to her work. But there are other judges on the court. Your goal is to hit at least one of them in the gut. After the argument, the judges will confer. You want that one judge to say to the others, 'Hey, I now have some second thoughts about this case. Maybe we should reconsider....' If you can turn that one judge into your advocate behind the closed doors, you've made the most of oral argument."

Flash asked, "If I didn't think of a theme when I wrote my brief, how can I come up with one now?"

Plato replied, "Maybe being away from the case for a few months will give you a new perspective. Or maybe the theme is in the briefs, but it's buried in a mass of facts and legal arguments. Or maybe you can now put a new twist on it, something that makes it more dramatic. Or maybe you've consulted with an experienced appellate attorney who saw a new angle.

"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' precedent and the like. The theme is usually about injustice, not law. Focusing on a reported case will almost never turn them around.

"The best themes emerge from the facts of your case: there's something about these facts that makes it very unfair to rule against your client.

"Sometimes the best way to present a theme is with an example or an analogy -- preferably something involving lawyers or judges and common experiences that judges are likely to have had. If your case involves an issue of real property law, think of an example involving renting a law office, buying a home, or investing in a small apartment house. 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 often reminds them of things that have happened to them.

"Plan to open your oral argument with that theme and work it into your answers to questions. Don't be afraid to be bold. Turning around an appellate court at oral argument is a long shot, so go for it -- take a chance. If it doesn't work, you haven't lost anything by trying."

Flash said, "So what might be my theme in Debbie's appeal?"

Plato said, "Let's review the record. Your client, Debbie Dropshot, was a tennis pro at the Topspin Tennis Club. Topspin hired Debbie to teach tennis to Topspin's members. On her own time, Debbie also played in professional tournaments, run by the Tennis Association. The Association requires players to submit to periodic drug tests. Right before a tournament, Debbie took a drug test and flunked. The Association banned her from playing. Debbie is appealing that decision to the Association Board, claiming that the test was flawed: it showed 'positive' only because Debbie had taken some medication for a sinus ailment. But once Topspin's board of directors heard that she flunked the test, they fired her for breaching a provision in her three-year contract with Topspin that required her to 'maintain professional standards and high-quality instruction for Club members'. You sued Topspin for wrongful termination. But The Bull granted Topspin's motion for summary judgment, ruling that flunking a drug test violated that provision, so there was no 'triable issue of fact.'"

Plato asked, "So what's your theme of injustice, Flash? What's the one thing you could say that might hit the Justices in the gut?"

Flash thought for a moment. "Topspin wants to fire her for taking illegal drugs, but Topspin's directors heard no evidence of that. All they did was take the word of some other organization. But even the finding of that organization isn't final, because Debbie is appealing it."

Plato said, "That's good, Flash. Go for it!"

Flash was surprised. "That's it? Shouldn't I present the arguments I used in my brief?"

"Too late for that. They read your brief. Your arguments either worked or they didn't. At oral argument, you should assume they did not work, and try something new and bold. And you don't have much time. Oral argument goes by pretty quickly."

Flash hesitated. "But shouldn't I talk about law? Isn't that what appellate judges want to hear?"

Plato said, "That's what their opinions would lead you to believe. But their motivation is more about facts and policy. That's what has the best chance of turning them around. If you can do that, they'll find the law that supports it."

Flash said, "Thanks. Well, I'm quick on my feet and I know this case well, so no need to prepare much."

Plato replied, "No, Flash. Quick on your feet is good, but you still need to prepare. We'll talk more about how to prepare next time." 