Appellate Adventures, Chapter 20: "What Should I Do 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 had 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.]

Flash said, "Thanks for the tips on how to prepare for oral argument. But what do I do when I get there?"

Plato explained, "Many lawyers start with 'May it please the Court....' Too formal for my taste. I say simply, 'Good morning, your honors. I'm Patti Plato, and I represent the appellant.'

"Then ask to reserve a few minutes (no more than five) for rebuttal. Only the appellant gets this -- not the respondent. Don't forget! If you don't ask for it, you might not get it.

"Then give the court a short -- very short -- summary of the facts. They probably know the basic story from reading the briefs, but they could use just a sentence or two to let their minds adjust from the case they just heard before your case.

"Then tell them the issues you want to argue -- very briefly, just a sentence on each. And no more than two or three issues. Then pause to see if they want you to move to a particular issue.

"Then launch into your theme. This is your powerful justice argument, designed to turn around a judge who has read the briefs but is leaning against you. We discussed this earlier, and you came up with a good one: Topspin is firing Debbie 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 other organization isn't final, because Debbie is appealing it.

"Keep this theme very short and punchy. Then see how the judges react, and answer any questions about it. If it seems to be working, return to this theme and work it into your answers to subsequent questions. Then move to your outline -- and work your theme into that too."

Flash said, "Very helpful, Professor. Any more tips?

"Yes," replied Plato:

• "Never read a speech -- and don't even memorize a speech. The judges will quickly stop listening. They want a conversation, not a lecture.

• "Never answer a question by saying, 'I plan to get to that later, your honor.' That answer shows you care more about yourself and your game plan than the judges' concerns.

• "Always stay in the moment. You've put all this time into preparing, but if the judges' questions show that they're going in a certain direction, shift gears and deal with it on the spot. If this means dumping your outline, so be it. A general or football coach will prepare an elaborate plan for an upcoming battle or big game, but once the action starts, he'll shift gears quickly, depending on what happens on the spot.

• "Be polite and helpful, but don't be afraid to be bold and aggressive. You are there to win. One judge might be giving you a hard time, to the point that you see little chance of convincing her. But standing up to that judge might help you turn around one of the other judges.

• "Don't dwell on trivia, and don't bring up many cases. Usually, the judges care more about the facts of this case, the fairness of the result, and the policy implications of any holding they might come up with. One or two major cases is plenty. You are there to turn around the bottom line -- 'affirmed' or 'reversed' -- not to help them write their opinion.

• "Bring key statutes with you. The judges might ask you about particular wording.

• "Know the record and bring it with you. Or bring an easy way to find stuff in the record -- like the statement of facts in your brief, which has all the citations. The judges might know some of the basic facts, but they won't know the details like you do -- and these details might turn out to be very important. If a judge's question shows that she misunderstands a significant fact, be sure to correct her.

• "If you represent the appellant, go ahead and criticize the trial court's ruling and reasoning, and do the same re your opponent's arguments. Don't hold back, but never attack either them personally.

• "Show some passion, but keep your language moderate and professional."

Flash asked, "What do I do with my rebuttal time?"

Plato answered, "Rebuttal time can be very useful. While your opponent was arguing, you've had a few minutes to think of a better answer to the tough, crucial question a judge asked during your opening argument. And you've had a chance to watch the judges while they heard your opponent's argument. So use your rebuttal time to go for the guts of the case. It's your last chance, so don't waste it with trivia. Do not use it correct your opponent's mistakes on unimportant details.

"Anything else, Professor?"

"Yes. Have a good time, Flash. Oral argument can be very challenging. You need to think fast. But it can be a lot of fun -- though it will never be as good as the terrific argument you'll come up with while driving home from court!" 