Saturday, March 12, 2022
Nearly all lawyers and law students are familiar with the conventional advice regarding how to perform and maximize the persuasiveness of an appellate oral argument. For example, law students are taught to develop a persuasive theme, begin with the strongest argument, know the record, the law, and the standard of review, concede (or reconcile) unfavorable facts and precedent, never attack the adversary or lower court, never misrepresent the facts or law, and craft a compelling narrative.
This is good advice that can certainly enhance the persuasive value of an argument, increase the likelihood of success, and ensure that an advocate maintains credibility with the court. But do these techniques always work? No.
Below are several tips that attorneys should consider when preparing for an appellate oral argument.
1. Begin by addressing the weaknesses in your argument.
Conventional wisdom suggests that you should begin with your strongest and most persuasive arguments. But that doesn’t always work.
Appellate judges aren’t stupid.
They know the law.
They know the record.
And they know what your strongest arguments are – and they probably don’t care.
Rather, they are concerned with the weaknesses in your argument and, during questioning, will probe those weaknesses with precision and consistency. So why adopt the predicable and formulaic approach of beginning with your strongest arguments? Indeed, some appellate judges probably aren’t even paying attention to you when you do so.
For example, in Maryland v. King, where the Court considered whether a cheek swab of an arrestee's DNA violated the Fourth Amendment, the oral argument began as follows:
[Petitioner’s attorney]: Mr. Chief Justice, and may it please the Court: 11 Since 2009, when Maryland began to collect 12 DNA samples from arrestees charged with violent crimes 13 and burglary, there have been 225 matches, 75 prosecutions, and 42 convictions, including that of Respondent King.
Justice Scalia: Well, that's really good. I'll bet you, if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. (Laughter.)
Justice Scalia: That proves absolutely nothing.
[Petitioner’s attorney]: Well, I think, Justice Scalia, it does, in fact, point out the fact that -- that the statute is working, and, in the State's view, the Act is constitutional.
Justice Scalia: So that's its purpose, to enable you to identify future criminals -- the perpetrators of future crimes? That's the purpose of it? I thought that that wasn't the purpose set forth in the -- in the statute.
The Petitioner’s attorney probably and understandably believed that beginning with an argument about the statute’s efficacy would be persuasive.
The justices on the U.S. Supreme Court, however, are very smart and perceptive. After reading the briefs, they are aware of your strongest arguments. They know the record and the law. They know, in many cases, how they are going to decide a case before an oral argument begins. And they have identified the weaknesses in your argument.
Accordingly, in some instances, begin by immediately addressing the weaknesses in your case. In other words, cut out the bullshit and get straight to the heart of the matter. After all, as an appellate advocate who has prepared extensively for oral argument, you probably know the questions – and concerns – that the judges will raise. Thus, why not begin by addressing those concerns and, in essence, preempting their questions? Doing so will enhance your credibility and your argument’s persuasive value.
2. Appellate courts care about their institutional legitimacy and your argument should reflect that reality.
The justices on the U.S. Supreme Court, along with judges on lower federal and state appellate courts, live in the real world. They understand that their decisions can – and often will – engender substantial criticism from the public, which can undermine the Court’s institutional legitimacy.
That’s why judging is a political, not merely a legal, endeavor. It’s also why the Supreme Court (and lower federal and state appellate courts) will render decisions based in part on perceptions about how the public will react to a particular decision.
Thus, when presenting your argument, be sure to provide the court with a workable, fair, and equitable solution that will produce an opinion that maintains an appellate court’s institutional legitimacy. Think about the opinion that the court will ultimately write. Would your argument result in an opinion that the court would embrace and that the public would find credible? If not, your chances of winning decrease substantially.
3. The law isn’t everything – convince an appellate court that it is doing the right thing by ruling in your favor.
When judging moot court competitions recently, many, if not most, law students based their arguments primarily, if not exclusively, on precedent, emphasizing favorable case law and striving mightily to distinguish or reconcile unfavorable precedent. And to a substantial degree, these arguments were well-presented and persuasive.
But judges aren’t robots. They are human beings. They have emotions and biases. Perhaps most importantly, they want to reach decisions that enable them to sleep at night with a clear conscience.
That’s in part why courts have an on-again, off-again relationship with stare decisis. When judges believe that a prior case was wrongly decided, or will lead to a result that they find unjustifiable, they can – and often will – overturn precedent. And even though they will cloak their analysis in legal jargon, you can be sure that their decision is based on the fact that they believe they are doing the right thing.
To be clear, precedent is important. But it’s the beginning, not the end, of the inquiry.
For that reason, advocates should always consider the equities in a given case and appeal to principles of fairness and justice (and sometimes, emotion).
4. Know who your friends are and target the swing justices.
Before oral argument, many appellate judges, after reviewing the record and reading the briefs, know how they are going to rule. And no matter what you say at oral argument, they aren’t going to change their minds.
Before oral argument at the U.S. Supreme Court, for example, you need to identify the justices that will likely support or oppose your position. Most importantly, you have to identify the swing justices and tailor your argument – and responses to questions – to those justices. For example, in Obergefell v. Hodges, legal scholars almost certainly knew that Justices Scalia, Thomas, and Alito would not vote to invalidate same-sex marriage bans. They also knew that Justice Kennedy was the swing justice and that the Petitioner’s arguments should focus on getting his vote.
To be sure, in many oral arguments before federal appellate courts, you will not know before the argument which judges will support or oppose your argument. But as the oral argument progresses, you will usually be able to identify the judges that support you, the ones that don’t, and those that are undecided. When you do, tailor your argument to the undecided, or swing, judges.
5. Be conversational and relatable, not confrontational and rigid.
Again, when recently judging moot court competitions recently, it became quickly apparent that many of the competitors’ demeanors were excessively formal and impersonal. The rigidity with which the arguments were delivered – along with the defensive reactions to the judges’ questions – made it difficult, if not impossible, to have a genuine conversation with the advocates.
That approach is a mistake. An oral argument should be a conversation, not a confrontation.
Accordingly, when arguing before an appellate court, relax. Show the judges that you are a human being. Show the judges that you have a personality – and even emotion. Be conversational. Be confident. Be relatable. Be likable. Watch actor Edward Norton’s oral argument before the U.S. Supreme Court in The People v. Larry Flynt and you’ll get the point.
Judges – like all people – may be more likely to agree with a litigant that they like.
Of course, you should always be professional and respectful. But if you come across as a robot, you will appear inauthentic and preclude the type of connection with the judges that excellent appellate advocates achieve.
6. Think of the one thing that you want to say – and say it in a way that the judges will not forget.
This needs no explanation.
Watch Matthew McConaughey’s closing argument in A Time to Kill.
 Maryland v. King, 569 U.S. 435 (2013), Transcript of Oral Argument, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2012/12-207-lp23.pdf. (emphasis added).