Appellate Adventures, Chapter 19: "How do I prepare for oral argument?"

Our story so far...

Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") had 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 had weighed the likely costs and benefits of appealing the Bull's ruling -- and decided to go ahead. So he filed his notice of appeal and his designation of record, then drafted an outline of his opening brief. Plato advised him how to draft the procedural facts section of the brief, then the substantive statement of facts, and how to organize and present the Argument section. [See prior Moskovitz On Appeal columns.]

Last time they met, they discussed the importance of a theme: a bold message that might "turn around" a court that is leaning against you.

Flash came up with a pretty good one: "Topspin is firing Debbie for taking illegal drugs, but the Board heard no evidence about that. All they did was take the word of the tennis Association. But even the finding of that organization isn't final, because Debbie is appealing it."

"That's what you should lead with, Flash," said Plato. "It has the best chance of turning around a judge who is leaning against you. And you should return to it, working it into your answers to the judges' questions."

"Are the questions important?"

"Very important. Questions are windows into the judge's mind, so listen carefully to them. Don't treat a question in isolation, as an abstract query. Treat every question in the context of the appeal. In fact, treat pretty much every question as a statement: 'Counsel, I am going to rule against you for this reason -- unless you talk me out of it -- right now!' If you can't answer it in a way that persuades, you will probably lose the appeal. So try to anticipate questions -- and think of answers that persuade.

"What kind of questions are they likely to ask?"

"Questions are likely to break down into the following types," explained Plato.

Questions About the Record

Judges know a lot of law, but only rarely do they know the record in your case better than the lawyers do. Don't try to memorize the entire record, but have key parts of it marked, tabbed, or indexed in such a way that you can quickly find anything the court is likely to ask for.

Since your briefs already cite the relevant parts of the record, you might find it easier simply to tab your briefs and look at the tabbed page to find relevant cites to 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. Get ready for this.

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 by you or your opponent -- especially the facts. Indeed, 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 some 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 the present case.

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. It's better to write a letter to the court citing the new cases.

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 usually less willing to play fast and loose with statutes.

Be sure to bring key statutes with you to oral argument. Don't be surprised if some judge asks you about the specific words of a statute.

Questions About Policy

Appellate judges care about policy implications -- the effect of a published opinion on other people and institutions.

So show how certain fundamental values likely to be 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. They can be especially effective with judges who are not familiar with the inner workings of a certain industry or activity."

Questions About Fairness to the Parties

Most appeals do not involve some new or novel issue of law. The appellant usually claims that the trial court misapplied some established rule of law.

You might be right on the law, but the appellate judge might ask a question along the lines of: "Technically, your position might be correct, counsel. But wouldn't a reversal for that reason be very unfair to the respondent?" The following answer won't get you very far: "The law is the law, Your Honor, and the trial court is required to follow it no matter what." The judge is telling you that she's about to affirm, and the opinion will find some way to skirt around the legal problem. Prepare an answer that directly addresses the fairness issue.

"Very helpful advice," said Flash. "Anything else I should do to prepare?"

"Yes," said Plato. "Prepare to give a very short summary of the facts. The presiding judge might give a standard speech to the assembled lawyers: "We are very familiar with the facts of each case, so don't summarize them for us." Nevertheless, a short one sentence summary will help the judges reorient their brains from the case they heard just before yours (or wake them up if yours is their first case of the day). "As the Court will recall, this case involves...."

"Should I prepare an outline of the issues I want to discuss?"

"Yes, so long as you keep it very short -- much shorter than the Outline of Argument in your brief. If the judges ask questions, your allotted time will pass very 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 appeal 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 already 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. 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."

"Anything else?" asked Flash.

"Just one final tip," said Plato. "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 feel that you are ready for just about any question and nothing will surprise you. This feeling of self-assurance will improve the quality of your whole argument, as well as ensure that your answers to the questions are the best answers you can give." 