Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, June 22, 2024

Questions to Consider When Preparing for Oral Argument

Most attorneys understand that you must know the record and the law when preparing for an oral argument before an appellate court.  You must craft a concise, organized, and compelling argument and be able to distinguish unfavorable law and reconcile unfavorable facts.

However, this is often easier said than done. Below are some questions that may help you prepare for oral argument.

    1.    How would you write the opinion?

If an appellate court asked you this question, what would you say?

You must be prepared to explain the reasoning underlying your position. For example, why is your position more consistent with the text of a constitution or statute? Why is your argument consistent with the court’s precedent? Have you considered unfavorable facts and law, and can explain why they do not affect the outcome you seek? How do you address counterarguments and why do those arguments lack merit?

Considering how you would write the opinion in your favor will help to organize your argument, explain your reasoning, and address weaknesses in your position.

    2.    How would you finish this sentence?

You should be able to state in one sentence why you should win your case.

For example, if you argue that imposing a sentence of life imprisonment without parole on a juvenile violates the Eighth Amendment. Imagine if an appellate court asked you to complete this sentence: “Imposing a sentence of life imprisonment without parole on a juvenile convicted of first-degree murder violates the Eighth Amendment because                                     .”

What would you say?

If you cannot state why you should win in one sentence, you will lack the clarity and conviction that excellent appellate advocates present in their arguments.  Consider the following responses to the question above:

Advocate: The Eighth Amendment, as this court is aware, protects against cruel and unusual punishment, and that determination depends on whether a punishment is consistent with evolving standards of decency that mark the progress of a maturing society. When applying this standard, this court should be mindful that circumstances today are far different from those that existed when the Eighth Amendment was adopted. When you consider how standards have changed, it is evident that executing juveniles, who cannot reason like adults, is cruel and unusual because it imposes on them a penalty that can only be justified for adults. The Eighth Amendment should not be interpreted to support unreasonable punishments and contemporary standards of decency counsel against such a draconian remedy.

This response is utter nonsense. It says nothing substantive whatsoever and shows that the advocate cannot concisely articulate why imposing a sentence of life imprisonment without parole would violate the Eighth Amendment.

Advocate: Imposing a sentence of life imprisonment without parole on juveniles convicted of first-degree murder violates the Eighth Amendment because such a sentence fails to consider that juveniles’ brains are not fully developed, disregards the principle that such sentences should only be imposed on the most culpable offenders, and ignores the well-settled rule that sentences must be proportionate to the severity of the offense.

 This response is not perfect, but it clarifies your argument and provides the court with three concise and concrete reasons that explain why imposing a sentence of life without parole on a juvenile violates the Eighth Amendment. That is far more persuasive and likely to garner support from the court.

    3.    Why shouldn’t the Court decide the case on grounds other than the ones you support?

Be sure to anticipate the alternative grounds upon which an appellate court might rule in your favor and be prepared to address them in depth. In so doing, do not argue that those grounds are insufficient, or that your position is superior. Rather, explain why the court’s reasoning is an equally justifiable way to support your position. Consider the following examples:

Court: Counselor, you argue that laws prohibiting abortion violate the right to privacy that is encompassed within the liberty protected by the Fourteenth Amendment’s Due Process Clause. But can’t you argue that such prohibitions violate the Equal Protection Clause because they place a unique and disparate burden on women that prohibits them from participating equally in society?

Advocate: That may be true, but our position, which is consistent with the Court’s precedent, is that prohibitions on abortion violate the right to privacy encompassed within the liberty guaranteed under the Fourth Amendment and that the court should rule on this basis.

   This response is terrible. That response tells the court that you reject the alternative reasoning that it may use to rule in your favor, and only want the court to rule based on the argument you presented. Instead of expanding the grounds on which the court could rule in your favor, this attorney just narrowed them and based his argument on a ground that the court did not even mention.

Consider this response:

Advocate: Certainly, the equal protection clause supports invalidating laws prohibiting abortion. As this court has recognized, such laws impose an undue and disparate burden on women and prohibit women from participating equally in the social and economic life of our society. Indeed, abortion prohibitions enshrine into law the very inequality and disparate impact that the equal protection clause prohibits. As such, these prohibitions violate the equal protection clause and, as we have argued, the liberty interest protected by the Fourteenth Amendment and this court’s jurisprudence.

This response is more effective. It acknowledges the court’s view that laws prohibiting abortion violate the equal protection clause, and it affirms that the equal protection clause could be a basis upon which to invalidate such bans while reinforcing the advocate’s original position that these bans violate the liberty interest protected under the Fourteenth Amendment’s Due Process Clause.

    4.    Why can’t the court rule on a narrower ground?

An appellate court may suggest narrower grounds to support a ruling in your favor. If it does, you should be prepared to support and justify those grounds and thus expand the bases upon which the court can rule in your favor. Consider the following example of a lawyer who is advocating that assisted suicide is a right protected under the Fourteenth Amendment’s Due Process Clause.

Court: Counselor, you acknowledge that your client is terminally ill, having suffered from Stage Four glioblastoma for approximately one year. Doesn’t your argument support a ruling that the right to assisted suicide only exists where individuals seeking to end their lives have terminal illnesses, and thus is not a license for anyone to end their lives simply because they wish to do so.

Attorney: Well, we argue that the right to assisted suicide should not be limited to a specific class of persons. Instead, this is a right that the liberty interests under the Fourteenth Amendment, and this Court’s jurisprudence, protect with qualification.

     This response is awful. The court is telling the lawyer that it wants to rule in his or her favor, but not on grounds as broad as the lawyer is advocating. The lawyer should take the hint and acknowledge that ruling on narrower grounds is justified because it supports a ruling in favor of the lawyer’s client and is a step toward recognizing a right to assisted suicide for all citizens in the future.

Consider this response:

Advocate: The liberty interest protected by the Fourteenth Amendment undoubtedly protects the right to assisted suicide for terminally ill individuals.  This right is based on the fundamental right to privacy and liberty recognized by this court and reflects the principle that if liberty means anything, it means giving terminally ill individuals the right to determine when to choose that they no longer wish to suffer.

   This response is more effective because the attorney pivoted from an absolutist position regarding the right to assisted suicide to a position that is more palatable to the court.  In so doing, the attorney enhanced his likelihood of succeeding and achieving a favorable result for the attorney’s client.

    5.    Will your position lead to unjust outcomes in future cases?

Good appellate advocates recognize that an appellate court does not care primarily about their client or the outcome of the case. Rather, the court cares about how its ruling will affect future cases, and whether such a ruling will lead to unjust outcomes in future cases. Accordingly, attorneys should advocate for a ruling in their favor on the narrowest grounds possible; doing so will make it less likely that such a ruling will lead to concerns about unjust outcomes in future cases.

Consider the following example, which involves a case where an attorney argues that life imprisonment without parole can be imposed on juveniles who commit first-degree murder.

Court: Counselor, if we adopt your rule, a ten or eleven-year-old child could receive a sentence of life imprisonment without the possibility of parole. Does that seem like a just result?

Attorney: Ten and eleven-year-old children are minors and, if they commit the heinous act of first-degree murder, nothing in the Constitution prohibits a sentence of imprisonment of life without parole. Indeed, such a sentence may be necessary to protect society and ensure public safety.

      This response is about as bad as it gets. The court is telling the advocate that it is not comfortable with adopting a categorical rule that all minors can be sentenced to life imprisonment without the possibility of parole. Knowing this, the attorney should immediately adjust his or her position and, to accommodate this concern, narrow the grounds upon which the attorney can achieve a favorable ruling. This attorney failed to do that.

Consider this response:

Advocate: Our position is not that any minor, regardless of age or circumstance, can be subject to a sentence of life imprisonment without parole. Rather, we argue that a categorical rule prohibiting the imposition of life imprisonment without parole of any minor, regardless of the severity of the crime, would allow some minors who engage in heinous acts of violence to escape responsibility for these acts. Of course, the court could rule in a future case that sentencing a ten or eleven-year-old minor to life imprisonment without parole violates the Constitution. Thus, a ruling in our favor does not prevent this court from addressing those concerns.

    This response is better. The attorney effectively addressed the court’s concern and explained that a ruling in the attorney’s favor would not prevent it from ruling that sentences of life imprisonment without parole for ten and eleven-year-old offenders violated the Constitution.

    6.    How does your argument impact the Court’s precedent?

In most instances, arguments that require a significant departure from a court’s precedent are less likely to succeed. Courts and litigants understandably value predictability and stability in the law, and arguments that would require a major departure from, or overruling of, precedent will be met with skepticism, particularly given the doctrine of stare decisis. Although there are exceptions, the best approach is to persuade the court that your argument (and the remedy you seek) is consistent with the court’s precedent or, at the very least, represents a logical expansion of, or imposes proper limits upon, such precedent.

***

When preparing for an oral argument, put yourself in the shoes of the appellate court judges. They want to reach a fair outcome that the facts and law support. If you can see your case from their perspective, and answer effectively the questions raised above, you will maximize your chances for success.

https://lawprofessors.typepad.com/appellate_advocacy/2024/06/questions-to-consider-when-preparing-for-oral-argument.html

Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Moot Court, Oral Argument | Permalink

Comments

Post a comment