Tuesday, October 29, 2019
No offense to this blog’s readers, but appellate advocates in general are a narcissistic bunch. We like to think of ourselves as the drivers of legal change in our system. We assume that the arguments we present before appellate courts are the impetus for new opinions that will have far-reaching practical effects in law and society. I feel confident in ascribing this self-important attitude to appellate advocates because I held it dearly when I practiced as an appellate public defender. Nothing could be more meaningful, I assured myself, than a worthy struggle in the arena of ideas that is an appellate courtroom, with the eventual victor illuminating the legal path forward for decades.
When I began wearing an academic hat, I was forced to reexamine my assumptions about the role appellate advocates plays in shaping the law. And that reexamination was sobering. Our judicial system carries a deeply embedded faith in the procedural justice of adversarial litigation—the idea that when parties compete in a fair process for adjudicating disagreements, they will produce the most just results possible. But when I examined both my own experiences as an appellate clerk and the available data on high court adjudication, I was disappointed to realize how often judges themselves, rather than litigants, drive the outcomes in our supposedly adversarial courts. Take the United States Supreme Court, for example. Supreme Court litigants and their attorneys play a diminishing role in actually shaping the direction of the law, while the “umpire” Justices themselves take greater control over the direction of jurisprudence. The Justices have lowered the demands of their discretionary dockets by consistently granting certiorari in fewer than 100 cases per year, while simultaneously increasing the length and originality of their opinions; their written work is both longer and contains less borrowed language from the parties’ briefs than ever before. In those opinions, Justices themselves often participate in a kind of top-down lawmaking. An opinion in a case decided today often ghost-writes the brief the Justice would like to see presented in future appeals, allowing that Justice to shape the law according to their preferences in future case they have transparently invited litigants to file.
Oral arguments are little different. For several decades preceding this term, oral arguments have left less and less space for the advocates themselves to shape opinions. Attorneys in the Supreme Court instead play the role of straight man in conversations dominated by the Justices, who appear disinterested in the responses from the lectern. In a comparison of oral arguments in the 1958–1960 Terms and the 2010–2012 Terms, Barry Sullivan and Megan Canty noted the myriad ways in which Justices have come to dominate the direction of oral argument over the last half-century, including an increase in the ratio of Justice-spoken words to advocate-spoken words, a near doubling of the average number of words spoken by the Justices per oral argument, and far shorter opening monologues by counsel.
It was thus tempting to celebrate the Supreme Court’s recently-announced rule permitting the advocates approximately two minutes of uninterrupted monologue at the start of oral arguments. Perhaps this would mark a sea-change for appellate advocacy, revitalizing the role of advocates in Supreme Court litigation. Yet there is reason for hearty skepticism. Justices have long taken a guiding role in the direction of the law through use of the discretionary docket; invitations for specific arguments in future appeals; and techniques to slowly undermine, or even stealthily overrule, the reasoning in precedent cases. The two-minute rule will not cabin any of those techniques that permit the Justices, rather than the litigants, to drive the appellate litigation bus.
One well-worn trope holds that cases are seldom won at oral argument, but can readily be lost if one is insufficiently prepared to defend their brief’s arguments against a barrage of troubling hypotheticals and slippery slopes. If anything, the new rule only erodes that trope at the very extreme margins. Advocates may have slightly greater opportunity, in increments usually measured by a kitchen timer, to shape the direction of the law in their presentation to high courts. But this offers little salve when the hypotheticals come cascading down, with little interruption for actual answers, during the bulk of the argument. For appellate advocacy to meaningfully change, and for advocates to play a more determinative role in shaping the law, the justices themselves must approach their job with greater humility, aspiring to resolve the controversies actually presented rather than those they have hoped to see and invited to come before them. Without that change in attitude and approach, the two-minute rule may be little more than a procedural fig-leaf from a court that has drifted further and further away from the judicial system’s adversarial ideals.
This is all not to say that appellate advocacy has lost its value in today’s world. Preparing for an appeal remains one of the most demanding, rewarding, and fruitful exercises any attorney or law student can undertake. Nothing helps an attorney refine their legal arguments more than planning for the crucible of hypotheticals they might face from a high court. And the history of our nation’s highest courts still suggests that some advocates, through either sheer intellectual brilliance or perfectly-timed moments of inspiration, play a guiding role in shaping the direction of the law. But a clear-eyed evaluation of the appellate advocacy process suggests that Justices are the real drivers of case outcomes. Of course, appellate attorneys must still ensure that their clients receive vociferous representation and a prepared, skilled advocate at the podium. But that podium’s power is limited, and it is not often the driver’s seat for appellate litigation.
 Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339 (2017).
 See, e.g., Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U.S. Supreme Court Opinions, 45 Hous. L. Rev. 621, 630, 634–35 (2008); Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, 1946–2013, 86 Miss. L.J. 105, 137 (2017).
 See Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341-43 (2017).
 Barry Sullivan & Megan Canty, Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958–60 and 2010–12, 2015 UTAH L. REV. 1005, 1042.
 See Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010).
October 29, 2019 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Monday, October 28, 2019
Arguing before an appellate court, particularly for recent graduates or those with limited oral argument experience, can be daunting. Below are ten tips that will enhance the persuasive force of your argument, strengthen your oral argument skills, and maximize your chances for success.
1. Have an outstanding introduction
When preparing for oral argument, be sure to prepare a concise and persuasive statement (no longer than two minutes in length) in which you set forth the most favorable precedent, facts, and arguments that support the remedy you are seeking. The reason is that the judges will likely begin to ask you questions shortly after you begin your argument. Thus, it is critical to ensure that you begin with a powerful introduction and emphasize the strongest aspects of your argument before the questions begin.
2. Anticipate questions that the court will ask – and prepare effective responses
When arguing before an appellate court, the majority of your time will likely be spent responding to the judges’ questions. And you can be sure that the judges will focus on the weakest aspects of your case. Thus, when practicing for oral argument, it is critical for you to identify and address unfavorable facts and precedent. In so doing, your goal should be to convince the judges that the presence of unfavorable law or facts should not affect the remedy you are seeking.
3. Prepare, Prepare, Prepare
In the weeks (or months) before an oral argument, you should prepare extensively. Specifically, you should be able to discuss the record below, the relevant facts, and the governing precedent, and address relevant counterarguments without referring to any notes. Indeed, your command of the facts and law will enhance your credibility and enable you to deliver a compelling argument.
4. Concede weaknesses in your argument and acknowledge unfavorable facts
In almost any case, there will be weaknesses in your argument. For example, there may be facts or precedents that are not favorable to your position. When arguing before an appellate court, do not be afraid to acknowledge these weaknesses. Doing so will enhance your credibility with the court. For this reason, you should be prepared to explain why unfavorable facts or precedents should not affect the remedy you are seeking. For example, if you are confronted with unfavorable precedent, be prepared to explain why such precedent is distinguishable or would lead to an unjust result.
5. Be respectful to the court and your adversary
This should go without saying, but at all times you must be respectful to the appellate court, the lower court, and your adversary. Thus, be sure not to interrupt the judges when you are asked questions. Do not insult or attack the lower court or your adversary. Always speak in a measured and respectful tone, making sure not to use over-the-top language or express unnecessary emotion. Failing to maintain professionalism will detract from your credibility and reduce the likelihood that you will succeed.
6. Consider the impact of a ruling in your favor on future cases
Understand that, when an appellate court is deciding your case, the court is also considering how a ruling in your favor will affect future cases. For example, if the court adopts your proposed rule, will it lead to an unjustifiable expansion of the law or have unforeseen consequences that the court would not countenance? Thus, when preparing for oral argument, be sure to consider the policy implications of a ruling in your favor and be prepared to address how such a ruling will impact future cases in different contexts.
7. Respond to the judges’ questions directly
Excellent advocates never attempt to evade a judge’s question. If you do so, the court will likely get frustrated and view the strength of your argument less favorably. Accordingly, be sure to answer every question directly by relying on the relevant facts and law. And remember that the judges’ questions are a window into how the judges are considering the merits of your case, and thus an opportunity to convince the judges that their concerns are best addressed by ruling in your favor.
8. Speak slowly and be aware of your non-verbal actions
It is natural and entirely normal to experience anxiety before an oral argument. Knowing this, be particularly mindful of the manner in which you deliver your argument. For example, do not speak too quickly. Instead, gather your thoughts and speak in a conversational, respectful tone. And be sure not to fidget or move unnecessarily at the lectern. Keep your composure and your focus on the facts and law. After all, your non-verbal actions can often be as revealing as your verbal communications.
9. Be aware of the time – and practice under timed conditions
During most oral arguments, you will have up to thirty minutes (and sometimes less) to present your argument. You should practice under timed conditions to ensure that you can provide the court with the strongest and most relevant points supporting a ruling in your favor. In so doing, you should prepare a concise list of your most important arguments and make sure that, no matter how intense the questioning, you communicate these points either at the beginning or end of oral argument.
10. Prepare an excellent closing
Be sure that your closing statement is as powerful as your opening statement. Regardless of the questions that you are asked, make sure that you end your argument by providing the court with the strongest argument(s) that support the remedy you seek. Indeed, just as you want to create an excellent first impression at the beginning of an oral argument, you also want to provide the court with a powerful ending that offers compelling reasons to rule in your favor.
Extra tip: Have fun and do your best. You have a unique opportunity to obtain a favorable ruling on behalf of your client and effectuate a positive change in the law. Don’t put too much pressure on yourself. Do your best and relish the opportunity to make a meaningful difference in law.
Tuesday, October 22, 2019
A couple of weeks ago Kent Streseman posted a blog about the Supreme Court's new "two minute rule," generally allowing the first two minutes of oral argument to proceed without questioning, and how it had been applied in the first couple of oral arguments after its introduction. As he noted, the writers of this blog are watching with interest to see how it is applied and what, if any, difference it makes in oral argument.
Of course, we all have our opinions as to the value of this time and how it should be used. As I ponder the best use, a couple of theories are bouncing around in my head that suggest possible strategies.
First, there is the narrative paradigm. Walter Fisher, a communications theorist, suggested this paradigm in the 70s, and it has continued to have influence since then. Basically, Fisher suggested that the objective notions of rhetoric may be less important than the subjective importance of the story being told to the listener. So long as the story is internally coherent and truthful to the listener's own notions, then the listener will have "good reasons" to believe the story, whether those reasons are objectively true or not.
As legal practitioners, we tend to shy away from the narrative paradigm. Instead, we tend to couch our "storytelling" in terms of Aristotle's pathos - one of his triad of support for a good argument that involves the appeal to our audience's emotion. But the narrative paradigm goes deeper than this. It suggests that there are "truthy" arguments that appeal to us as storytellers that are more influential than just an appeal to either logic or emotion.
The second theory in some ways justifies Fisher's paradigm with neuroscience. As we have written before on this blog, neuroscience supports the ideal that there is "fast" and "slow" thinking processes at work in all of us. The "fast" processes rely on surface thinking that is informed by often unconscious preconceptions, stereotypes, and biases. It takes little thought to avoid the snarling dog, drive a well-known route, or even read the average blog. Unfortunately, it also takes little thought to dismiss the arguments made by someone against whom the judge has an implicit bias, or rule in a way that is consistent with prior rulings, even though circumstances may have changed. It is important, then, to engage the "slow," deliberate thinking of a panel by exposing implicit bias where necessary.
These two concepts - the importance of storytelling and the dangers of implicit bias - suggest different approaches in different cases. It may be important in your case to unveil potential implicit bias and deal with it explicitly at the start in order to quickly engage deliberative thinking. It may also be important in your case to reframe the story that underlies the facts so that the panel does not lose track of the human story that underlies the legal issue. The two minute rule gives you time to address these issues when they arise.
There are many other strategic uses of the two minute rule. Whatever your thought process, just remember that this time is valuable, and should be used more deliberately than just a time set-aside for a statement of theme and introduction of a roadmap.
(Image credit: Honore Daumier, "He defends the widows and orphans, unless he is attacking widows and orphans," 1846 lithograph from the series "Le Gens de Justice.")
Wednesday, October 16, 2019
Advice about appellate advocacy is abundant. How to begin; how to structure an argument; how to respond to questions; how much deference to show to the judge(s); whether to reserve time for rebuttal—these are all things the advocate should consider when preparing for oral argument. The best advocate should also experience a bit of anxiety. Not crippling anxiety; just enough anxiety to get adrenaline flowing; just enough anxiety to evidence that the advocate appreciates the gravity of the task and the client’s cause. “Situational anxiety, if it’s proportionate to the circumstances in which it arises, can have quite a positive impact.”1
Situational anxiety associated with public speaking is common. In fact, public speaking is ranked highly among things and situations people fear the most, along with snakes and spiders.2 Most law schools require law students to perform some public speaking, from responding in class as part of a Socratic dialogue to delivering a trial level or an appellate level oral argument as part of a moot court exercise. Some law students walk away from these experiences believing that public speaking is not for them because they are anxious about making oral presentations. Others learn to thrive from the rush they feel when under the pressure of public speaking. Law professors and lawyers who mentor students and new lawyers should help students and new lawyers recognize that not only is this situational anxiety good for them, it is also good for their clients. And, it is not unusual. If law students and lawyers could recognize that some level of anxiety is healthy because it shows that the speaker cares about and recognizes the gravity of the task, perhaps some of these students and lawyers would reconsider their perceived aversion to public speaking.
As I prepared for one of my first oral arguments, a mentor advised me that some level of anxiety before an oral argument is healthy. Anxiety borne from a desire to represent your client and your client’s position to the best of your ability, combined with preparation, is good. I would even argue that it is necessary. I have told students that the client who has a lawyer who is not nervous about delivering an argument needs a new lawyer. I think I may have read that somewhere many years ago. Arguably, if the lawyer has no anxiety about delivering the oral argument, then perhaps the lawyer does not care enough and will not be energized enough to deliver a passionate argument. People do not get nervous or worry much about things for which they do not care.
Science supports this theory. Dr. Loren Soeiro explains: “Anxiety helps us detect and attend to potential threats so that we can avoid danger. In the short term, anxiety can keep you at a heightened state of alert, allowing you to react more quickly when urgent dangers arise—like when you’re driving anxiously in the rain, and you find yourself responding immediately to erratic changes in traffic patterns.”3 He explains that if you face no anxiety when facing life-changing events and choices, you may end up missing something important because you will not fully think through what is going on.4 Situational anxiety serves to enhance your motivation to work hard and perform well, and it boosts your performance levels.5 It can also improve memory and lead to “responsible leadership.”6 “At significant moments when performance becomes an issue, the right amount of anxiety will help us do that much better.”7
Thus, for the law student or lawyer called upon to represent a moot or a real client, situational anxiety can provide just what is needed to ensure that the advocate is giving the task and the client his or her all, both in preparation and in execution.
Educators and mentors of law students and lawyers should be sure to share this message. Doing so will help to normalize what these students and lawyers may be feeling and allow them to recognize and accept the positive aspects of what is ordinarily considered negative. Moreover, as first generation law students and lawyers enter law schools and the profession, it is especially important to educate these newcomers on the value and, indeed, the routine occurrence of the situational anxiety lawyers experience. These newcomers to the field may lack the opportunities to hear from seasoned lawyers about the anxiety that is common and can be helpful. Recognizing and embracing the kind of anxiety every client’s lawyer should experience before and during an oral argument or presentation should lead to better lawyering and perhaps more well-adjusted lawyers.
1Loren Soeiro, 3 Reasons Why Anxiety is Good for You, Psychology Today, May 20, 2019, https://www.psychologytoday.com/us/blog/i-hear-you/201905/3-reasons-why-anxiety-is-good-you.
2Kendra Cherry, 10 of the Most Common Phobias, Verywell Mind Blog, https://www.verywellmind.com/most-common-phobias-4136563 (last updated October 3, 2019) (explaining that fear of public speaking is the most common form of social phobia).
3Soeiro, supra note 1.
5Id. (noting that “[r]esearch indicates that student-athletes who feel anxiety are able to perform better in their events — and on college exams! — than those who denied feeling worried.”).
Wednesday, October 9, 2019
It has been a week since Supreme Court of the United States rocked the always-ready-to-rock appellate-advocacy world by rolling out the Two Minute Rule: lead counsel for parties generally will have two minutes to argue uninterrupted before a white light shines and the questioning begins. We at the Appellate Advocacy Blog have feelings—many feelings, complicated feelings, nascent feelings—about this rule. But mostly we’re curious to see how it plays out.
If the justices mostly adhere to the rule—and, as the term began this week, early reviews indicate that they mostly did—composing a set piece for that two-minute window likely will become part of the advocate’s craft. For now, though, in the early days of this new world, I’m just curious: what does an uninterrupted two-minute opening look like on the page, seeing as we’re used to seeing JUSTICE HOTMCBENCHFACE appear on the transcript a few syllables after “May it please the Court...”?
Here’s the answer, from a pair of First Monday/First Tuesday arguments by particularly outstanding advocates.
Sarah Schrup of Northwestern Law School, counsel for Petitioner in Kahler v. Kansas, whose first question from Justice Ginsburg came right after the dying of the white light:
Pamela Karlan of Stanford Law School for Petitioner in Bostock v. Clayton County:
That is the canvas.
Thursday, September 12, 2019
Amy Howe, a former contributor at SCOTUSblog, is conducting a podcast series with notable Supreme Court oral advocates. The first in the series to be interviewed was Paul Smith who has argued twenty-one cases before the Court. Smith discusses his first appearance in the Court in 1986, pre-Scalia days, and how things have changed. He says that it used to be common for the petitioner to take three or four minutes to frame the facts, before having to field any questions. Today, a concise opening statement of less than two minutes is imperative if one wishes to have any hope of framing the argument at all.
His preparation for arguments is not mysterious. He rereads all the briefs, tries to anticipates the hard questions, drafts a short outline of his intended argument, and most importantly conducts numerous moot courts. He emphasizes that a memorized but not rehearsed-sounding opening is important. He recalls Justice Rehnquist interrupting opposing counsel during one argument with the interjection, "Are you reading?!" flustering the other attorney so much that he barely recovered.
Smith argued the landmark case of Lawrence v. Texas, and recalls getting questions from Justice Scalia that he had not anticipated nor had anyone in his moot preparations hit upon during practice. Smith says all one can do in that situation is hope that you can come up with something sensible, and perhaps get lucky with a friendly justice who may intervene. However, he states that if a thorough moot court preparation has been undertaken, it is usually the case that an answer can be formed that is consistent and coherent with your position.
As for strategies when taking the respondents' position, Smith says there is not much time to take notes. An advocate must just listen and make one decision - where to start. When contemplating rebuttal, an additional decision should be made - whether to make one at all. Many times those who make rebuttal often wish they had not stood up.
The series can be found at SCOTUStalk and the episodes are less than twenty minutes long.
Wednesday, September 4, 2019
I'm often asked by practitioners who are preparing for their first oral argument in the United States Court of Appeals for the Seventh Circuit about good resources regarding what to expect. And my answer's always the same: read the Handbook. The court maintains an excellent Practitioner's Handbook for Appeals. And thank goodness it does. For one thing, the Seventh Circuit is notoriously persnickety about compliance with briefing rules. As the Handbook notes, its clerks flag about 10–15% of briefs tendered for filing as deficient. The Handbook gives detailed advice about how to avoid getting your brief bounced, including four pages on generating an unrejectable jurisdictional statement. The court's advice on brief content requirements nicely fleshes out the requirements of FRAP Rule 28(a) with concrete tips about drafting segments of the brief. And its eight pages on typography in briefs: indispensable.
The Handbook also isn't half bad as a primer on oral argument. The Seventh Circuit is an oral argument-heavy joint. Unlike in most circuits, oral argument is the norm; with rare exceptions, the court schedules oral argument in all counseled cases. So it's not surprising that a big chunk of the Handbook (nine tersely-written pages) describes the process of oral argument in the circuit. The advice about sound presentation is all excellent.
The Seventh Circuit is not alone in providing a practitioner guide that offers solid tips about oral argument. A few examples, with links that'll jump you to the oral argument stuff:
- The U.S. Supreme Court's recently updated Guide for Counsel is thorough and concrete. I draw from it often when I teach and moot advocates.
- The Fifth Circuit's Practitioner's Guide is designed to make it easier for pro se litigants (and lawyers) to practice before the court. Its seven pages of information on oral argument goes beyond scheduling and mechanics to offer useful tips on preparation and presentation.
- The Tenth Circuit Practitioner Guide's ten pages on oral argument feature some nice formulations of standard advice:
And this tattoo-worthy tip:
Tuesday, August 20, 2019
There have been numerous articles and speeches about the benefits of moot court for law students. Success in advocacy competitions in general is an overall indicator of success on the bar. It teaches the student to examine both sides of an issue, be thorough in their research and writing, develop professionalism in the courtroom, and to refine arguments through multiple iterations. Some students say that the exercise is one of their most educational experiences in law school.
But what about the coaches and advisors who work with the students? This year marks my 21st year coaching moot court teams. Over those 21 years I have been repeatedly questioned as to why I put so much effort into a work that has never generated a single appellate case referral. My answer is that while coaching moot court may never build your business, it can build you up in many other ways.
First, lawyers never stop learning the law. I coach three competitions a year, and they are difficult ones. While only one permits me to work with the students on the writing, they all permit working together in collaboration on the oral argument. Because they also all do a good job of developing problems that deal with perplexing and important issue of the day in the law, I am able to keep abreast of the law in ways that simply would not be possible if I were to focus exclusively on my practice. This is particularly true in the area of Constitutional law, in which I have developed a broad and deep knowledge that I find invaluable at odd moments in my practice.
Second, lawyers never stop honing their skills. As I work with students in each competition, I am reminded of the importance of certain skills and the impact of bad habits. That helps me keep my own skills sharpened. And I refine those skills through lessons I learn from those interactions.
Third, lawyers always benefit from a larger network. Whether you teach full time or practice law and have recently been asked to volunteer, you will likely benefit from expanding your network. You might get referrals later in your career, you might develop a peer group of other coaches and advisors that you can bounce ideas off over time, or you might develop a stronger reputation in your given area. Networking works differently for everyone, but there are always benefits.
And finally, lawyers need community. Practicing lawyers who work as mentors experience greater job satisfaction than those who do not. Our work, whether teaching or practicing law, can become painfully isolating. Coaching or advising a moot court team draws us out of our shells and into the lives of the students we work with.
Over the weekend I had the great honor of officiating at the wedding of two of my former moot court students. I was deeply honored and humbled by their request. While I may never receive an appeal to work on as the direct result of my work with students, no amount of legal fees could ever match the satisfaction and affirmation of that experience, or any of the personal interactions I have on an almost weekly basis with my former students.
Moot court is good for law students. It is good for their coaches and advisors, too. So if you are asked, say yes. And if you haven’t been asked, consider this an invitation to volunteer.
(Image credit: Honore Daumier, The High Tribunal of Judges, 1843)
Tuesday, August 6, 2019
I am a big proponent of oral argument. It can, and should, make a difference in complicated cases. No matter how tight our writing is, there is something about the give-and-take of oral argument with a well-prepared panel that refines arguments in a way that is difficult to match. But we also have to be very careful, or the words we say can live on in ways we did not expect.
While I was catching up on my reading following summer vacation with my family (a big thank you to my friend, John Browning, for covering with his excellent guest post while I was gone), I dove into the recent analysis of the Plain Error Doctrine in Justice Oldham's concurring opinion in U.S. v. Del Carpio Frescas, No. 17-50245 (5th Cir. July 29, 2019). While I found his analysis of the origins and misadventures of the doctrine since the 1800s to be fascinating and recommended reading for anyone who deals with the doctrine or the topic of waiver versus forfeiture of error, what caught my attention most was his reference to a comment by the Federal Public Defender's Office made during oral argument in a different matter. Without going into detail, Justice Oldham used that comment to raise what he considers to be an anomaly in the law.
We already know that some Supreme Court Justices are prone to quoting oral argument in the opinions that they write in the same matter. According to a 2008 analysis, Justice Ginsberg cites the transcript in almost every opinion she writes, with Chief Justice Roberts following a bit behind at one citation to the transcript every other authored opinion. See Frederick Liu, Citing the Transcript of Oral Argument: Which Justices Do It and Why, 118 Yale L.J. Pocket Part 32 (2008). The Justices use the transcript for three primary reasons: (1) to describe an advocate's affirmative position; (2) to record an advocate's concession; and (3) to note an advocate's representation of the record or facts. Being quoted is not necessarily a good thing -- Justices were almost twice as likely to cite statements made by an advocate whose side they opposed than one they supported.
We already know, then, that what we say at oral argument in a given case may be used in the opinion that follows. The oral argument does seem to make a difference, at least to justices on the margins, and the right argument can still sometimes win the day. Of course, the converse is true. Loose lips can sink ships. The impact of the statements made at oral argument is the primary reason I urge advocates to "moot" their appeals.
But what struck me about Justice Oldham's use of the transcript was that he was drawing from other cases. As more courts record oral argument and transcripts become more widely available and searchable, the idea of having my words used in an opinion months or years later is a bit sobering. And it drives home the idea that these transcripts are another important research tool that is easy to overlook.
Don't forget that even our spoken words live longer now than ever. We need to tap into that as a source of research, and be careful with what we say for both the cases we are currently handling and the ones we may handle in the future.
(Image information: WWII era poster from the U.S. National Archives and Records Administration).
Monday, July 15, 2019
This is a guest post by Raffi Melkonian, a partner at Wright Close & Barger in Houston, Texas.
The day after I gave my first (and only!) United States Supreme Court argument, I put up a thread on Twitter (where I post as @RMFifthCircuit) about my oral argument preparation. It was well-received, and many people encouraged me to tease it out a little into a blog post or article. This is my first attempt to do exactly that. A caveat: these thoughts are for people like me. That is, lawyers who don’t normally practice in the rarified air of the Supreme Court. It’s advice for the first-time tourist, not the experienced traveler. Maybe it’s even good advice for the new lawyer preparing for their first appellate argument. So if your name is Paul Clement or Neal Katyal, stop reading!
One more thing. This post is not about briefing. Yes, it’s conventional wisdom that the merits brief is the most important part of the Supreme Court presentation. I think that’s true. And yet, it’s a complicated topic that goes far beyond the scope of this post.
Anyway, oral argument is the moment many first-time advocates focus on, and with good reason. It’s the one time you’re alone with the nine justices of the Supreme Court. No one can help you. And, the stakes for your client are high. Not many cases are won at argument, to be sure, but some are lost. In Justice Ginsburg’s words, “I have seen potential winners become losers in whole or in part because of … oral argument.” But the advocate too has some skin in the game. As I know from scrutinizing arguments on #AppellateTwitter, a lawyer’s missteps at oral argument are judged harshly by the commentariat. You don’t ever want to be that guy.
So what then? The answer is intense and unrelenting preparation. Listed below are some of the strategies I used to get ready. But remember, excellent lawyers prepare differently. What may work for me won’t work for you, and the reverse. So, as they say on the Internet, Your Mileage May Vary.
- My grandmother, like many Catholics, would read a small prayer book every morning, a daily devotional. It seemed to me that I needed to know all of the briefs as intimately as she knew her prayers, so I had all the pleadings set out in a binder – our briefs, their briefs, and the various amici – and I read them every morning. I took notes, of course, but mainly the point was to read them again, and again, and again.
- David Frederick, the famous Supreme Court lawyer, recommends in his book on oral argument that you spend much of your time thinking of questions the Court could ask you. That’s part of my normal oral argument preparation, and I took his advice doubly to heart for SCOTUS. I spent hours thinking of as many questions as possible. I scrawled some of these questions on note cards, some I typed. No question was too benign, and none too difficult. The hardest work was writing out extensive answers to each question.
- I wrote a very short outline of what I wanted to say, and practiced in front of a camera at a podium (well, a cardboard box) many times. A picture I posted on twitter of that effort was even turned into a meme by the incredibly creative @AliceLfc4, a court clerk in Florida (here’s proof!). Every 20 seconds or so, I’d pick a question from my pile and ask it to myself, and then answer, and then practice pivoting back to what I was trying to say. This effort required many edits to my note card answers. Some of my answers were bad, others too long. Over time, they became tighter, more focused, pithy. Well, as pithy as I get, anyway.
- Ultimately, I became convinced that there were only six thematic sentences I needed to say, no matter what. I wrote these on a notecard and practiced saying them during my note card answers. The goal was to say each of the six at least once in any practice session. I got five of them out during the actual oral argument.
- I did three moot courts in total, beginning about two weeks before the argument. I spent two days before the moot preparing for the argument, and then the entire day after the moot incorporating the feedback. Needless to say, I am ever grateful to the teams at Stanford, Public Citizen, and the Georgetown University Law Center Supreme Court Institute that mooted me.
- Finally, consider the physical space. I hadn’t been to the Supreme Court since college, and so I picked an oral argument day earlier in the week to observe. This turned out to be a good idea. The space is both overwhelming and tight, and knowing what it feels like helped put me at ease when I went for real. Plus, I had many guests with me, none of whom had been to the Court either. Being able to give them real world advice about the process of getting in and to the courtroom (though really, you can just read Jaime Santos’s go-to thread) was invaluable.
An article I read before the argument helpfully advised that most advocates do not faint at the Supreme Court’s podium. At the time, I felt that was rather macabre. But with the right preparation, a Supreme Court argument can be enjoyed rather than endured. I know I enjoyed mine.
Tuesday, June 25, 2019
In my last entry, I gave an overview of how to set up a moot court session for your real appeal, including panelist selection, timing, and preparation. Today, I want to talk in more details about how to set up and conduct the moot court session itself.
1. Plan Ahead and Be Respectful of your Panel's Time.
Making the most of this time is critical. You are either costing your panelists their time (if they have volunteered) or paying them for it, either in the form of a flat or hourly fee. Be respectful of that time. First, give them copies of the briefing and key cases or statutes far enough in advance that they can time-shift the work needed to be prepared for the session. Second, let them know your expectations for their participation at the session and the anticipated time involved.
2. Establish a Format for the Session.
The latter bit of information will depend on whether you are going to have a “typical” session or add on time. The “typical” session that I recommend is in two parts. First there is a true “moot court” session, accurately emulating the anticipated oral argument. Second, the panel takes off the robes (literally or figuratively) and talks through their critique of the argument and the answers given. Give yourself time for your moot court (with or without opposing argument presented) and then, as a rule of thumb, at least double that time for the follow-up discussion. Encourage the panelists to raise issues or questions that might not have been brought up during the round.
You can add to this time if you wish. Some practitioners want to give the argument first without questions as a straight run-through, then have the panel hear the argument again and ask questions. I usually counsel against this, because it means your moot panel will have heard the argument much more clearly than your actual panel will.
If your panel has time, you may want to have an initial roundtable after the argument, then watch the video and see what other questions or comments are brought to mind when doing so. As mentioned in the earlier article, you might even want to have a separate brainstorming session before your response or reply are due, in order to flesh out issues during briefing instead of oral argument.
In my moot court coaching, I alternate between informal roundtable discussions, question and answer sessions, and argument. Over the years I have come to believe that it takes all three types of preparation, much like a sports team might have team meetings to discuss plays, conduct skill drills, and then play in scrimmages in order to prepare for a real game.
Whatever the plan is, make it explicit to the panel and be sure to prepare for each step. Do not underestimate the time for your panel if you want them to work with you again.
3. Accurately Emulate the Oral Argument.
Next, pay attention to the actual setup of the moot court session. I prefer using as realistic a setup as possible. If you have never argued before a particular court before, find out what kind of timing mechanism is used and find one that matches it as closely as possible. If you are not familiar with timing lights, they can be very distracting and a bit confusing. To prepare, you can find timing lights on Amazon or other retailers. Practicing with the light will help you get a better feel for how to time your argument without fearing your first encounter with “the light.”
If possible, try to hold your moot session in a setting that emulates your oral argument environment. Many law schools have practice courtrooms, with some set up for appellate simulation. In a pinch, a conference room will work, but use a podium and have the panel sit together so you can get used to scanning for reaction. Teleconferencing is also an option if time or distance simply do not allow for everyone to be in the same room, but I don’t find it to be as accurate a simulation as other setups.
4. Prepare Yourself and Your Panel.
When the date of the session arrives be sure that you and your panel are prepared. If you have selected former justices, appellate practitioners, or even former clerks for the court you are approaching, and have provided them with materials in time to prepare, they will be ready to serve as a general panel. If you receive a notice of panel change or setting, be sure to share that with them and discuss potentially doing additional research to emulate a particular justice on the panel, if that is the approach you wish to take.
Prior to the session, practice and refine your argument on your own, and work with potential Q&A that you and your colleagues may have developed. If you are a newer or infrequent advocate, and you are nervous about how to handle questions, one practice technique is to write down anticipated questions on note cards, give them a good shuffle, then start your “speech,” grabbing a card at intervals and responding to the questions while working back into the arguments.
Finally, watch oral arguments from your court, your panel members, and your opponent. The proliferation of online videotaped oral argument is a wonderful preparation tool.
5. Enjoy the Conversation
The ultimate goal of all of this work is to make yourself comfortable with the subject matter, the format, and the environment to such an extent that you are able to engage in a meaningful conversation with your real panel. Only by working with a practice panel can you reassure yourself that your weaknesses have been fully probed, and only be simulating the experience accurately can you feel comfortable when you stand to speak. But don’t forget to enjoy the moment – oral argument is increasingly rare on appeal, and each time it is granted you are being given an opportunity to meaningfully collaborate with the court in properly developing the law in a setting that is meant to speak your sometimes dry legal arguments to life.
(Image credit: My furtive photo of an excellent simulation experience for two of my SMU Law School moot court students, Adrian Galvan (speaking) and Sydney Sadler (sitting to his left) at the final round of the TYLA Moot Court Competition earlier this month, where they were able to argue in front of all but one of the judges (that is the proper term for this court) from the Texas Court of Criminal Appeals.)
Tuesday, June 11, 2019
As both a moot-court coach and a real-life appellate specialist, I find myself moving back-and-forth between real appeals and simulations on a regular basis. Each one advises the other, and I think the experience makes me both a better coach and practitioner.
One area of overlap is in "mooting" appeals. In law school, it is an exercise in practical skill building with formative assessment in the form of constant feedback. In real appeals, it is the best preparation there is for oral argument, no matter how skilled the presenter might be.
Don't just take my word for it:
No preparation for oral argument is as valuable as a moot court in which you're interrogated by lawyers as familiar with your case as the court is likely to be. Nothing, absolutely nothing, is so effective in bringing your attention to issues that have not occurred to you and in revealing the flaws in your responses to issues you have been aware of.
Antonin Scalia & Bryan Garner, Making your Case: The Art of Persuading Judges 158 (2008)
Your opponents are probably doing it. The United State's Solicitor General's office, as well as Appellate Staff throughout the government, conduct at least one moot session before oral argument. In larger cases, it is increasingly considered best practices to do so. Larger firms often conduct multiple moot sessions in-house. Even in smaller matters, informal mooting sessions are becoming more common.
Fortunately, if you are familiar with moot court from law school, you can probably put together a moot round for your argument. You just need a panel, a video camera, a plan, and time. Lots of time.
1. Pick your Panel Carefully
In general, you want to pick at least three panelists who will represent the type of judges you anticipate will be on your panel. Legal expertise is less important than appellate experience. For this reason, former appellate judges and appellate specialists are often utilized. Appellate specialists can put together a panel for you if you need the assistance.
Why not pick someone who really knows the substantive law? Because they aren't a good emulation of your court. You want people who will read what the court will read (the briefing, key cases, orders/judgments at issue and record excerpts) and then ask you the type of question that this preparation brings to mind. Someone who knows the law very well outside of this exercise might carry the same blinders you have developed during your time with the case.
If you are appearing before a court en banc or a court with more than three justices, you can use more panelists. Most practitioners do not suggest matching the full number, however, as there is diminished value in adding more seats at the moot.
2. Prepare For Your Session Wisely
You want to have at least one moot round within two weeks of the oral argument so you have time to prepare and adjust based on your session. If possible, discussing the issue even earlier can be of great benefit. Indeed, if you can schedule a time with your panelists to have a roundtable discussion before you finish briefing, that is ideal. Uncovering arguments and answering questions you had not thought of asking in your briefing, rather than in the oral argument alone, is ideal.
Some research into your potential panelists is a good idea. If you are in a jurisdiction that videotapes oral argument, watch recent arguments on related issues to get a feel for how the justices you might get on your panel are approaching your issues. I recently mooted a panel for a public interest group, and noted that one justice in particular on the circuit tended to focus on a particular statutory issue. I flagged that for them during the moot court, and when that issue arose at oral argument, they were able to answer it when others had not and ultimately prevailed.
You may also wish to find someone willing to argue the other side. The moot session can work with just your side if you are experienced. But if you need work on your rebuttal skills or in shaping your appellee or respondent argument to an unexpected approach or to address questions asked to co-counsel, this step can provide you some additional help.
3. Videotape the Proceedings
Time acquires a very subjective and malleable quality when one is being grilled by a panel of intelligent skeptics about a topic that has great importance. Before you know it, your time is up and you are sitting down trying to remember what was just said. Videotaping the round ensures that you will remember the questions asked and answered, and you can see how you look and act during your moments of panic and introspection. If you need to work on your "uhs" and tendency to sway while speaking, now is the time to do so.
4. Take Your Time at Every Stage
Finally, make sure everyone takes the time necessary for the process to work. You need to take your time in preparing your argument and answers for the moot session just like a real argument. Your panel needs to take the time to read the briefing and record. After your session, take the time to round everyone up and discuss what worked and what did not, how answers can be refined, and otherwise discuss the round. Then, if you have time, do it again.
Indeed, you can schedule multiple moots with multiple panelists. There are law schools that have appellate clinics who may be willing to do so for free. If you are arguing in the Supreme Court of the United States, book your time with the Georgetown University Supreme Court Institute as early as possible, as they are "first come first serve" when it comes to sides.
If you pick panelists who will ask you difficult and unexpected questions, if you take the time to prepare your presentation, if you review the videotaped proceeding carefully and refine your arguments, and if you are willing to do it all again if need be, you will go far in refining your argument. There is a reason one of the most commonly-heard comments from real judges who sit on panels for moot court competitions is "I wish the real advocates who appear before me were as prepared and skilled as you are."
In the next installment I will talk in a bit more detail about how to actually conduct the moot session to maximize its usefulness.
(Image credit: Honore Daumier, The High Tribunal of Judges, 1843)
Tuesday, May 28, 2019
In my last post I talked about the importance of tailoring your arguments to your panel. This week, I want to provide some practical advice on how to get to know your justices.
The first step is to know what they have written on in relation to your case. Most likely, you are already doing this as part of your legal research. Taking the time to take notes and reference authoring or dissenting justices will let you know if one of your justices has written on your issue in the past, and the approach they have taken to similar types of analysis.
This step should be a starting place for your analysis, not an end-point. As discussed earlier, judges are people, too, and their prior opinions may give you the “what” of their past reasoning, but not necessarily the “why.” To figure that out, you have to go a bit deeper.
There are a dizzying array of resources available for that task. Be aware that some are put together with particular social agendas in mind, or based on a particular experience with a judge, and are thus likely slanted one way or another. Recourse to several tools or sources is thus necessary to get a complete picture. These resources include:
- Westlaw Profiler
- Ravel Law
- League of Women Voters
- Alliance for Justice (AFJ) Reports on the Judiciary
- The Robing Room
In addition to these online nationwide resources, you can also find background information in court biographies, state and local bar association websites, campaign websites (for those judges who are elected or retained by vote), social media websites, news outlets, and by simply “Googling” the judge. Offline, don’t forget your own network of peers who will have insights based on their personal experiences.
When you have looked over these resources, you will have a better idea of what makes your particular judge or panel of justices “tick.” You can then tailor your argument to their life experiences in a way that will help them better understand your case. Be sure to stay mindful about the proper ways to do so, as discussed earlier.
If you know of a good resource that I did not list, please let me know.
(Image credit: Gene Elderman, Washington Post, January 7, 1937)
Saturday, May 18, 2019
A few weeks back, Deputy Assistant Attorney General Thomas Ward argued before the Fourth Circuit. What followed "May it please the Court," has become a lesson for appellate practitioners everywhere: Always remember your audience.
The case is Sanders v. United States, No. 18-1931. It's a pretty important case in its own right. Sanders is a Federal Tort Claims Act case. The plaintiffs alleged that the Government had failed in its duty to conduct a background check on Dylann Roof, the man who murdered nine African-Americans in Charleston, South Carolina. The plaintiffs contended that the Government's failure had allowed Roof to buy the guns used in the shooting.
The Government contended that the FTCA's discretionary function exemption applied and, thus, that there was no liability. That argument carried the day at the district court, and the Government relied on the same argument on appeal. The panel was relatively conservative, so the Government should have felt pretty good about its odds.
The Fourth Circuit's Chief Judge, Roger L. Gregory, wasn't having it. He asked a particularly charged question, which ended with Judge Gregory calling the Government's argument "absurd." That exhortation drew an eyebrow-raising comment from Mr. Ward, who responded, "Your Honor, I know you're not trying to humiliate me by that tone." What followed was a well-deserved tongue lashing from Judge Gregory, ending with the command to "just answer [the] question."
Mr. Ward's Sanders argument is a great example for us all. It's tough to see another attorney go through something like that. There, but for the grace of God, go I, right? Even so, the exchange offers an important lesson. Always keep your audience in mind. Remember that most judges are warm, friendly people, but that every so often one will find your considered position offensive. You've got to do your best to put these personal differences behind you. Otherwise, your argument will end up as a footnote to the much more juicy exchange you had with the bench. I know I remember very little about the Sanders argument, other than the attention-grabbing bit.
Monday, May 6, 2019
Don't worry, this post isn't about what color suit and shirt you should wear during an appellate argument (I mean, we all know the answer is charcoal or blue with a white shirt). This post is about whether you should wear any sort of affiliation pin on that (charcoal or blue) suit. Should you indicate your support for the Marine Corps, your alma mater, breast cancer research, the Federalist Society, Black Lives Matter, or any other number of groups by wearing some sort of lapel pin?
As I recently learned, the answer is no. A few weeks ago, I was listening to judges talk to students about appellate advocacy. One of the students was wearing a lapel pin for one of the branches of the military. A judge commented that the student shouldn't wear the pin at oral argument, and the judge's colleague agreed. I was surprised by this advice, as I had never heard it before from a judge. I asked around on a moot court listserv and got surprised responses as well. But, as I reflected on the advice, it made sense. It especially made sense for attorneys who are appearing before a judge for the first time or who are unknown in the jurisdiction.
Imagine a scenario where an appellate attorney argues a case before a panel of judges, two of whom have been active in an organization like the Federalist Society or the American Constitution Society. The attorney dons a lapel pin from that organization. As he stands up to argue, he is sending a signal to the judges that he is one of them--that he is part of their society and ascribes to the same ideals as the organization that he is representing on his suit collar. It boosts his ethos with the court.
Some trial court judges have specific rules preventing attorneys from wearing "political pins" in court. One listserv member shared a story about an attorney in Ohio who was held in contempt of court for wearing a Black Lives Matter pin into such a courtroom in 2016. Although the attorney appealed the decision, the case was settled and she stated that she "now understands 'that a courtroom is a nonpublic forum over which [the judge] had the authority to dictate decorum.'"
Without digging into the constitutional issues, the no pins policy seems to be a prudent one. The logos, ethos, and pathos of an attorney's argument should carry the day, rather than the "I'm part of your secret society" message that some lapel pins might attempt to convey. I do think, however, that some pins, especially school affiliation or military ones, become less of an issue with attorneys who practice regularly before the same judges. My husband was a prosecutor for many years in Virginia. He practiced primarily in juvenile court before the same three judges. After a few years of practice, I am sure that the judges didn't care if my husband had a lapel pin reflecting his military service--they knew that he was reliable, dependable, and prepared based on the years of seeing him in court.
For my students who are still building their ethos, I will now be telling them to (1) button their jacket when they stand to address the court, and (2) be cognizant of wearing a lapel pin that might be seen as an attempt to improperly influence a judge.
Monday, April 8, 2019
While many people may be swearing on April 15 because they forgot to do their taxes, the Supreme Court will have swearing on its mind for another reason. Iancu v. Brunetti poses the very interesting question of whether, under the First Amendment, the government may refuse to register trademarks it deems "immoral" or "scandalous." Mr. Brunetti was denied a trademark for his clothing brand FUCT (Friends U Can't Trust). The Federal Circuit ruled in Brunetti's favor, and now the Supreme Court will hear the case.
Just two years ago, the Supreme Court ruled in Matal v. Tam, that the "disparagement clause" in the Latham Act is incompatible with the First Amendment. I think that is likely that Brunetti will succeed too in his trademark quest.
But, the merits of the case isn't want I wanted to blog about. What is quite interesting in the case are the numerous examples in Brunetti's brief of trademarked and rejected words that could be deemed "immoral" or "scandalous." National Law Journal, in its Supreme Court Brief email, noted that the briefs are "most assuredly not suitable for minors." According to NLJ, the brief lists "34 words that might sound scandalous, only three of which have been handled consistently. [The trademark office] has allowed FCUK, FWORD, and WTF IS UP WITH MY LOVE LIFE? Again, those are mild compared to other unmentionable words and phrases in the brief." If you would like to read all of the bad words in Brunetti's brief, you can find it here. The juicy part starts on p. 11.
Despite the bad words in the brief, Brunetti's attorney told the Court in a footnote that he didn't expect it would be "necessary to refer to vulgar terms during argument. If it should be necessary, the discussion will be purely clinical, analogous to when medical terms are discussed." That decision was probably for the best. The NLJ article mentions Carter Phillips, who was called twice by the Court and advised not to use bad words in oral argument when he argued the FCC v. Fox case.
I think that the subject of how litigants and the Court use profane language is fascinating. Should the word be spelled out? Should one use asterisks? And, if you dare spell it out, can you then say it out loud at argument? Dare the justices say the word when announcing the opinion? According to a 2012 New York Times article, when Justice Harlan announced the opinion of the Court in the Cohen case, he was instructed by Chief Justice Burger not to "'use that word' because 'it would be the end of the court' if he did." You may recall from constitutional law that Mr. Cohen was prosecuted for wearing a jacket that contained words that, according to his attorney attorney, were "'not actually advocating sexual intercourse with the Selective Service.'" Despite the Court's reticence to hear the word out loud, in many cases, especially in a case like Brunetti's, it is important to see the word in context.
I plan on listening to Brunetti's attorney's argument if I get a chance to see if he holds true to his word.
Wednesday, March 20, 2019
I've blogged here about laughter at the Supreme Court. And I've blogged about the fascinating empirical work of Tonja Jacobi and Matthew Sag. So I'm thrilled that Professors Jacobi and Sag have trained their analytical lens on laughter in oral arguments at the United States Supreme Court.
Their new piece is Taking Laughter Seriously at the Supreme Court, forthcoming in the Vanderbilt Law Review; they summarize it in two recent posts (here and here) on their must-read blog, SCOTUS OA. This is not the first scholarly effort to track laughter at the Supreme Court: Jay Wexler, for funsies, has been cataloging SCOTUS laughter since 2005, and rhetoric researcher Ryan Malphurs has dug into the communicative function of humor at oral argument (pdf). But Professors Jacobi and Sag take the scholarship of laughter at SCOTUS—and, more generally, the scholarship of oral argument—to entirely new, deeply serious places. They leverage a remarkable dataset: a database of every SCOTUS oral argument transcript from the 1955 through 2017 terms. In the 1.7 million speech events by justices and advocates in 6,864 cases, 9,378 triggered a [laughter] notation in the transcript; about two-thirds of the laughter events were prompted by something a justice said. Jacobi and Sag supplement their text-mining quantitative analysis with old-school qualitative analysis: they read and cataloged all 1,061 episodes of justice-induced laughter from 2010 to 2017.
Their conclusion: laughter at SCOTUS isn't much about fun and frivolity; it's mostly about the modern blood sport of judicial advocacy.
The piece builds on and reinforces Jacobi and Sag's prior work about shifts in the dynamics of SCOTUS oral argument. In an era of sharpening division and partisanship, justices have increasingly used oral argument to advocate rather than inquire. And the justices' use of humor at oral argument is of a piece. Just as justices' use of oral argument time to comment and advocate has increased dramatically in the modern era, so too has the [laughter]. In the 1950s and 60s, laughs were few and far between, and they were prompted nearly as often by advocates as by the justices. This mostly continued into the 1980s. But then, in the late 1980s and again in the mid-1990s, the pace of justice-triggered laughter escalated sharply. And it has stayed high.
There's more: at the same time, the patterns of justice-provoked laughter shifted significantly. Justices tend to draw more laughter during arguments with which they ultimately disagree. Put bluntly, they make jokes at the expense of advocates they oppose. This has mostly been true for most justices since 1955. But the "laughter gap" increased significantly in the mid-1980s and again in the mid-1990s. This too is consistent with the broader trends Jacobi and Sag have identified regarding the rise of judicial advocacy in SCOTUS oral argument. The justices also increasingly use humor as a signal of an advocate's weakness: they direct humor at advocates who are losing. This pattern too deepened in the mid-1980s and again in the mid-1990s. And the justices' use of humor reinforces hierarchy on another dimension: it is directly most often at novice advocates, particularly ones on the losing side. And when one looks at the quips that inspire laughter, the data make sense: a massive share of SCOTUS jokes involve putting advocates in their place. One example, from United States v. Kebodeaux:
So humor in the contemporary Supreme Court is a sharp and serious tool. And Profs Jacobi and Sag have done sharp and serious work.
Wednesday, March 6, 2019
Like a lot of advocacy professors, I'm an avid consumer of social-science literature on persuasion, decision-making, and pedagogy. And I'm a fan of efforts by law professors to apply this literature to what advocates do. Sure, we've got to be humble and cautious: I and many of the law professors with interest in this area aren't trained scientists or statisticians, and stuff like the Social Sciences Replication Project and the hubbub over power posing offer healthy reminders that it's possible (even easy, sometimes) for folks trained in the right disciplines to get out over their skies. As Ted Becker points out, we in the persuasion business don't really know much about what really persuades judges. But much of the good, humble, cautious work helps us at least start down the path of sorting out techniques that work from techniques that we adopt just because they're the way we do things. There is a wealth of interesting work being done in this area related to persuasive writing and legal reasoning: Kathy Stanchi's body of work on psychology and persuasion is remarkable; Lucy Jewel's piece on old-school rhetoric and new-school cognitive science is a revelation; Steven Winter's work broke fascinating ground in knitting together cognitive science and legal reasoning. I could mention dozens of other scholars here: exciting things are happening.
We don't have a similar volume, as yet, of scholarship linking social science to oral advocacy. Still: I'd like to devote a few posts to highlighting a couple of pieces that I find particularly useful in refining the advice I give to advocates and in polishing my own performances.
I think it's fair to call the first a classic in the field: Michael Higdon's Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience, published in the Kansas Law Review in 2009. Professor Higdon offers a rich, comprehensive overview of research into the seven basic codes of nonverbal communication: (1) kinesics (i.e., what speakers do with their bodies); (2) physical appearance (i.e., what speakers look like); (3) vocalics (i.e., what speakers sound like); (4) haptics (i.e., how speakers physically touch an audience member); (5) proxemics (i.e., how speakers use physical space); (6) environment and artifacts (i.e., how speakers use instruments and their environment); and (7) chronemics (i.e., how speakers manages time). And he thoughtfully applies that research to what lawyers do in appellate oral argument.
I find Higdon's piece particularly useful in sorting out advice on things like the use of gestures. Quite often, beginning appellate advocates will do stuff with their hands that distracts judges. So they'll get categorical advice: don't talk with your hands. And they take that advice ... and promptly get told by the next set of judges not to be so stiff and nervous. Higdon's piece details research spanning several decades that makes it clear that any "don't use your hands" advice is flatly wrong: gestures are essential to effective in-person communication generally, and they're especially vital to persuasion. But there's a catch: only those gestures that are "synchronized with and supportive of the vocal/verbal stream" enhance comprehension and persuasion. The lesson that emerges: advocates should use purposeful gestures that match and support the points they make verbally, but avoid gestures that simply accompany the verbal stream. So use the hands to help you make a point, but don't let your hands flap around randomly to accompany your talk.
Higdon's points on speed of delivery (somewhat fast is actually good, so long as it doesn't flatten out a speaker's pitch and tone) and on managing the judges' dominance are similarly illuminating. If it is read as widely as it should be, the generations of appellate advocates will tilt their heads eight degrees to the right (see p. 643). And win.
Monday, February 25, 2019
Moot Court season is upon us. Law students from around the country are headed off to compete in a mock appellate arguments on a wide range of topics. This past weekend students competed at the Jeffrey G. Miller National Environmental Law Moot Court Competition (more commonly known as Pace). Students also competed at the San Francisco and Portland regionals for the National Appellate Advocacy Competition put on by the ABA. (Congrats to the teams from my school that both made it to the round of 5 at the San Francisco regional).
This coming weekend Boston and Philadelphia host their NAAC regional competitions. And, my school hosts the National Native American Law Student Association Moot Court Competition. We are looking forward to hosting 40+ teams from across the country to argue a difficult, but fascinating, Indian Law problem.
The University of Houston has already started tabulating the top moot court programs for its rankings. This year the current top 5 is Texas heavy:
- Loyola University
- South Texas
- University of Georgia
- University of Houston
I really love moot court. I love coaching, I love judging, and I love seeing students develop over the course of the weeks that they work on the problem. Moot court has many benefits for students. While it certainly teaches them teamwork, it also teaches them to be problem solvers and work independently. For most moot court competitions, students cannot receive any outside help on their briefs. For some competitions, they can't even receive substantive help during their oral advocacy practices. Moot court also teaches time management. Some of the major competitions, like the NAAC and the NNALSA, require students to brief over the winter holidays. Finally, moot court helps students learn to become excellent public speakers. I have heard that the number one fear that people have is public speaking. As a person who formerly hated public speaking, I know that the only thing that has helped me improve is practice, practice, practice. Moot court does that for law students.
Moot court has benefits for the local legal community too. Volunteering to judge provides you with more than a few free CLE credits, it allows you to think about and discuss an interesting area of law. Moot court problems are often centered around an interesting and unsettled area of the law--the kind of question your least favorite professor might put on a law school exam. It can be fun to get back into law school mode and ponder these questions (especially when you are asking the questions, rather than the other way around). I also think that moot court gives us hope for the next generation of lawyers. They can, and will, do great things. That is exciting.
But, despite the excitement, moot court isn't perfect. It isn't perfect because we all know that the briefs are way more important than the arguments in real life. It also isn't perfect because, just like in real life, gender stereotypes can rear their ugly heads. I was reminded of that this week when I saw an article on Law.com announcing that the first female appellate law clerk had passed away at the age of 94. Carmel Ebb, who graduated first in her class at Columbia Law in 1945, is believed by most to be the first woman to clerk for a federal appellate court judge. She clerked for Judge Jerome Frank on the Second Circuit. She interviewed for a Supreme Court Clerkship but, according to her obituary, “Her hopes were dashed when the justice concluded their conversation by saying he had no doubt she would be a fine clerk, but that his wife would never allow him to work in such close proximity to a woman.” Ms. Ebb went on to have a successful career, including making partner at a New York firm.
So how do gender stereotypes play a role in moot court? Next post I will look at an article on this topic.
Saturday, February 16, 2019
Recently, Tessa wrote about useful tools for scoping out the court. In her post, Tessa discussed resources for learning more about your audience, so you can effectively tailor your brief and argument.
In this post, I'll address some strategies for those times when learning more about your audience just isn't possible. For instance, if you're arguing to a panel of the Fourth Circuit, you'll have no idea who's been pouring over your brilliant brief until it's show time. Similarly, if your audience is a state supreme court, it's unlikely that any specific tidbit is going to save you. Consider the odds. In North Carolina, where I practice, you'd be left trying to anticipate the desires of seven justices, each with a different background.
So what's the advocate to do? Use your brief not only to argue but also to educate.
Here's some background. Recently, I heard North Carolina's Senior Associate Justice, Paul Newby, speak at a CLE. Justice Newby was tasked with explaining the Supreme Court of North Carolina's mandatory appellate jurisdiction in complex business cases.
The Justice made the point that too often the nuance of a complex business case may be lost on his colleagues. Each of them has a different background, and only one -- himself -- had a history of litigating business disputes, like shareholder derivative actions.
The problem isn't that the justices don't approach each case carefully. Quite the opposite. It's that they're spending too much time trying to grasp the foundational principles, which the attorneys didn't explain sufficiently, and thus don't have enough time to digest the arguments.
That got me thinking. Lawyers get tunnel vision. We know our case -- the ins, the outs, the twists, the turns. Sometimes, we've lived with it for months or maybe even years. We've done the legal research and read all the pertinent authorities.
Being so caught up may not be such a bad thing. If you were involved before the appeal, you have an intimate knowledge of the case that an appellate lawyer will try her best to recreate. But being so caught up also has its downsides. It's easy to become too comfortable with a set of facts, or with a legal principle.
But skimping on the basics can keep your reader from buying what you're selling. If a judge has to read your argument multiple times to get a basic grasp on the issues, you're losing ground. The time that a judge spends re-reading your brief, pouring over the record, or, worst of all, doing background legal research is time that he or she is not spending thinking critically about your case. Chief Justice John Roberts said as much in a 2007 interview with Brian Garner. (Read the whole thing, but especially check page 28 of the PDF).
So what can we do about it? Like all good legal problems, the answer depends. The answer depends on whether the wrinkle in your case is factual or legal.
If the complicated issue is factual, consider a tactic that a partner of mine calls "putting on the white hat." Take the opportunity to explain, as honestly as you can, not only the facts behind your case but also the context. Why are the parties fighting? What are their motivations?
I know, I know. That sounds more like a mediation statement than an appellate brief. But the reader will appreciate it. By putting the case in context, you'll have gained two advantages. First, you will have explained the case in a way that helps the judge or her law clerk understand it. It's likely your opponent won't, which also means you'll get a chance to present your case's human factors. And that leads to the second point. By explaining the human factors motivating your case from your client's perspective, you'll gain a subjective advantage. You'll humanize your client.
Sometimes, putting your facts in context is as simple as an extra sentence, or an extra phrase. For instance, if you're in an employer-union ERISA dispute, consider telling your reader what the employer does. Likewise, consider telling your reader who the union represents. Sure, these facts have nothing to do with the nuance of the ERISA plan in dispute, and you probably won't reference them anywhere in the brief. But this type of stuff is important if you want your brief to do more than recite facts; it helps your brief tell a story.
In any case, if the complicated issue is legal, then the best approach is to keep it simple. Remember, judges are generalists. While you might live and breathe environmental or bankruptcy or intellectual property law, that doesn't mean that your judge does. So think twice before you start using terms of art without first describing them in plain English. Slow the pace of your brief, educate your reader, and then explain why you should win.
I recognize that it might be frustrating to go back to basics. But there's yet another benefit. You have the chance to teach the judge the applicable law as you see it. It's another chance for advocacy, no matter how subtle.
To conclude, I'll leave you with this thought, which, to some extent, ties these points together. Be creative about how you structure your brief. For instance, if you're arguing about a novel issue of statutory interpretation or a complex statutory scheme, the court will likely be less interested in the facts of your case than with an overview of the statute. Lead with it. Embrace it. You can take a lot of approaches when writing your brief and, fortunately, very few are wrong. But more on that in my next post.