Sunday, January 16, 2022
As the pandemic became undeniable and understandings of its infectious nature grew, most courts adjusted to remote arguments, and many trial courts experimented with Zoom juries. In March 2020, I had a live argument in another state. My family, concerned about my well-being, loaded me up with trial-sized hand sanitizer, KN95 masks, and nitrile powder gloves. I recall feeling reassured when my departure airport was empty, only to discover that my connecting airport was a madhouse of largely unmasked travelers. Once in the courtroom, the presiding judge asked everyone to keep social distances, especially from the bench, as well as announced that the courthouse was being closed to the public indefinitely as soon as my oral argument concluded – something that made me wonder whether that decision was a day too late.
Two months later, I had another oral argument that required a flight and hotel room to attend. Again, well-equipped to do everything that the latest medical advice suggested, I went. The judge immediately advised the attorneys to take off their masks, suggesting that we should have nothing to worry about from co-counsel seated at the table with us. And rather than chance getting on the bad side of the judge, we dutifully complied.
Most of my arguments since then have taken place in my study at home through Zoom. During one argument before a Seventh Circuit panel, despite taping a sign to my door that alerted my family that I was arguing a case and that no one should enter, I heard the door open. I wondered who could have missed the sign, but remained focused on the judges in the on-screen tiles and my answers to their questions. Only after the argument was over and I had disconnected from the court, did I turn around to see that the door was left open. Turning further, I spotted the culprit – one of our dogs had opened the door and quietly come into the room, hopping up onto her favorite chair to watch the argument. I had not spotted her over my right shoulder but felt sure that the judges had. I wondered whether I may have won some points for her complete silence, knowing that the judges were likely to be understanding about the circumstances of arguments in the age of COVID. At least I did not have to assure them that I was not a cat.
In another instance, when New Orleans was particularly hard hit, I contacted opposing counsel, who also would have had to travel, about seeing if we could petition the Fifth Circuit about changing the scheduled in-court argument to Zoom. The court kindly accommodated us.
Today, weariness over remote arguments has set in. In fact, in a recent filing opposing a Zoom trial, defense counsel in a case pending in federal court in California cited “Zoom fatigue” as one reason to grant a continuance to a time when a live trial might be held.
The availability of vaccines and boosters appears to have convinced many, perhaps prematurely given the spread of the Omicron variant, that the time to appear in person has arrived once again, even if some appellate courts have recently reversed engines and notified counsel that remote arguments will replace their scheduled live arguments over the next few months. I recently had one argument postponed a month because opposing counsel tested positive shortly before the scheduled argument.
While I have discussed in an earlier post some advice about arguing remotely, the basics of preparation, whether live or remote, remains the same. For most arguments, months have passed since the briefing ended. Counsel needs to review everything in the case: Transcripts, arguments, supporting and conflicting authority. In one U.S. Supreme Court argument I had when no justice had any trial experience, I was asked by a justice just how one of these cases is tried in that particular state. As a purely appellate lawyer, I was an inexperienced at trial as the justices were. Moreover, I was neither admitted in the state from which the case came nor had ever witnessed any of the trial. I said that, based on the transcript, I could only describe how this case was tried and then proceeded to do so. The justices’ fascination with trial meant that it was the longest period I had during oral argument in that case without an interrupting question. The point is that preparation must be comprehensive, even about matters that do not affect the outcome.
The Supreme Court produces a Guide for Counsel arguing before that court. In it, it relates an anecdote about a commercial free speech case in which counsel, representing a beer company, was asked, “What is the difference between beer and ale?” The inquiry had no substantive effect on the case, but the justice received a knowledgeable answer. As the guide states, counsel “knew the business of his client, and it showed.”
With comprehensive preparation, counsel can be prepared for an unexpected question that may not go to the merits of the case but enhance credibility – and be well prepared when a scheduled argument switches from live to remote and vice versa.
 Counsel cited “How to Combat Zoom Fatigue,” Harvard Business Review (April 29, 2020); and “‘Zoom Fatigue’ Is Real. Here’s Why You’re Feeling It, And What You Can Do About It,” News@Northwestern, (May 11, 2020).
 Clerk, Supreme Court of the United States, Guide for Counsel, at 7 (Oct. Term 2021).
Sunday, December 26, 2021
On December 1, 2021, the United States Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health, where the Court will decide the constitutionality of a law in Mississippi that bans all abortions after fifteen weeks of pregnancy.
By way of background, in Roe v. Wade, the Court held that the Fourteenth Amendment’s Due Process Clause, which prevents states from depriving citizens of “life, liberty, or property … without due process of law,” encompassed the right of a woman to terminate a pregnancy. In so doing, the Court adopted a trimester framework: during the first trimester, women had an unfettered right to terminate a pregnancy. During the second trimester, states could regulate abortion access, provided that such regulations were reasonable and narrowly tailored to protect a woman’s health. In the third trimester, states were permitted to ban all abortions, except those necessary to protect the mother’s health.
Nearly two decades later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed the central holding in Roe but rejected the trimester approach. In so doing, the Court adopted a viability framework, stating that, before viability (i.e., the state at which a fetus can survive outside the womb, which occurs at approximately twenty-four weeks of pregnancy), states could not place an undue burden on a woman’s right to have an abortion. After viability, states could regulate, and perhaps ban abortions except where necessary to protect the health and life of the mother.
Not surprisingly, the Court’s decisions in Roe and Planned Parenthood were heavily criticized by both conservative and liberal scholars. Indeed, scholars noted that the Constitution’s text – particularly the Fourteenth Amendment – could not be interpreted to include a right to abortion. As Harvard Law professor Lawrence Tribe stated, “behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Likewise, late Justice Ruther Bader Ginsburg characterized Roe as “heavy-handed judicial intervention,” a matter of constitutional interpretation. And Edward Lazarus, a former clerk to Justice Harry Blackmun, stated that “even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible."
Regardless, in Planned Parenthood, the Court reaffirmed Roe’s central holding, and for nearly fifty years, women have had the fundamental right to access abortion services, particularly during the first trimester. Thus, principles of stare decisis, and concerns for the Court’s institutional legitimacy, counsel in favor of protecting this right even though Roe is indefensible as a matter of constitutional law. After all, if in Dobbs the Court overturns Roe, it would only be because a majority of current justices are more conservative than their predecessors. Thus, overturning Roe would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. In other words, it would suggest that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2021 than there were in 1973 or 1992. That is a recipe for destroying the Court’s legitimacy.
B. Dobbs v. Jackson Women’s Health
So how is the Court likely to rule in Dobbs? Below is a summary of the justices’ positions during oral argument, and a prediction of how the Court will ultimately rule.
Justices Elena Kagan and Sonya Sotomayor. Justices Kagan and Sotomayor appeared concerned that a decision overturning Roe would severely undermine the Court’s institutional legitimacy. It’s fair to say that Kagan and Sotomayor will vote to invalidate the Mississippi law.
Justices Clarence Thomas and Samuel Alito. Justices Thomas and Alito will almost certainly vote to overturn Roe and return the abortion debate to the states. Thomas, for example, questioned whether Roe was based on the right to privacy, liberty, or autonomy; his questions suggested that he believes (rightfully so) that there is no textual basis to support the right to abortion. Justice Alito appeared to disagree that stare decisis principles supporting upholding Roe and suggested that Roe could be overturned if the Court believed it was wrongly decided.
Justice Brett Kavanaugh. Justice Kavanaugh appeared poised to overturn Roe or limit abortion rights. For example, Kavanaugh suggested that overturning Roe and returning the abortion debate to the states would simply return the Court to a position of neutrality on the abortion issue. Given the Court’s decisions in Roe and Planned Parenthood, however, coupled with the fact that the Court’s more conservative membership, not any new constitutional or scientific developments, would arguably underlie a decision to overturn Roe, it can hardly be argued that such a decision would return the Court to a position of neutrality. Instead, it would be perceived – rightfully so – as a blatantly partisan decision. It is difficult to believe that Justice Kavanaugh is not aware of this fact. Additionally, Kavanaugh did not appear receptive to the stare decisis argument, noting that the Court had, in many instances, overturned precedent, most notably in Brown v. Board of Education (overturning Plessy v. Ferguson). What Kavanaugh failed to acknowledge, however, was that in most of these decisions, the Court’s decisions overturning precedent expanded, rather than limited, constitutional protections. Ultimately, Kavanaugh’s questions revealed a willingness to overturn Roe, although it is certainly possible that he will adopt a middle-ground approach that marginally upholds Roe but limits the time within which women may access abortion services.
Chief Justice John Roberts. Not surprisingly, Chief Justice Roberts, who is concerned primarily with preserving the Court’s institutional legitimacy rather than developing a coherent jurisprudence, sought to find a middle ground that would limit, but not eliminate, abortion rights. From his questions, it appears that Roberts supports upholding the Mississippi law yet also reaffirming (albeit limiting) the abortion right. Specifically, Roberts may reject the viability framework and hold that women have the right to access abortion services within a reasonable time after becoming pregnant.
Justice Amy Coney Barrett. Justice Barrett’s questions were quite surprising, to say the least. Most significantly, Barrett implicitly distinguished between the burdens of pregnancy and parenthood and, in so doing, minimized the burden of pregnancy. Specifically, Justice Barrett suggested that, because states have “safe haven laws” allowing women to surrender newborn babies to a medical facility without fear of criminal prosecution, a law outlawing abortion would not materially burden women’s ability to participate equally in society. This question was quite troubling because it reflected ignorance of the physical, emotional, and psychological burdens that a pregnancy engenders, including the deleterious consequences that carrying a pregnancy to term can have on a woman’s personal and professional life. Based on this question alone, it appears that Justice Barrett will uphold Mississippi’s law and, in so doing likely to either vote to overturn Roe and return the abortion issue to the states or vote to limit the time within which women may access abortions.
Justice Stephen Breyer. Justice Breyer’s questions left no doubt that he will vote to invalidate Mississippi’s law and uphold Roe and Planned Parenthood. During the oral argument, Breyer emphasized that Roe was a watershed decision and that principles of stare decisis thus required special and compelling justifications to overturn Roe, which could not be satisfied simply because the Court believed Roe was wrongly decided.
Justice Neil Gorsuch. Justice Gorsuch’s questions suggested that he was deeply skeptical of Roe and the viability framework, but that he was searching for a middle ground that would uphold yet limit the right to abortion.
Of course, the justices’ questions at oral argument are not necessarily indicative of how they might rule. In Dobbs, however, the justices’ questions appeared to reflect fairly entrenched positions regarding the right to abortion and the validity of the Court’s precedents.
Prediction: A majority (five or six votes) will vote to uphold the central holding of Roe. However, the Court will reject the viability framework and hold that women have a right to access abortion services within a reasonable time after becoming pregnant. During this time, the Court will hold that states may not unduly burden a woman’s right to access abortion services.
 410 U.S. 113 (1973).
 See id.
 See id.
 505 U.S. 833 (1992).
 See id.
 Carrie Severino, Dobbs: The Court’s Historic Moment (Part 2) (Nov. 26, 2021), available at: Dobbs: The Court’s Historic Moment (Part 2) | National Review
 Timothy P. Carney, The Pervading Dishonest of Roe v. Wade (Jan. 23, 2012), available at: The pervading dishonesty of Roe v. Wade | Washington Examiner
December 26, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)
Thursday, November 25, 2021
To be sure, the last couple of years have been difficult for many of us. But there still are reasons to be thankful this Thanksgiving. As an appellate practitioner, I am thankful for many things this year:
- Westlaw and Lexis. How did I ever find any controlling law without them when I was in law school and when I was a young attorney?
- Rules of Appellate Procedure. Okay, I'm a rule follower. And rule followers like rules.
- The Oxford comma. Without it, I might write this: "I'd like to thank my parents, God and the Virgin Mary." But with it, I really mean this: "I'd like to thank my parents, God, and the Virgin Mary." It also could save someone millions of dollars.
- American English. We fought a war so that we don't have to spell and punctuate like the British do (interestingly, the British don't seem to use the Oxford comma much). Of course, my students have a hard time understanding that in the United States we place periods and commas inside quotation marks.
- Dashes, colons, and semi-colons. They are way undervalued and underutilized.
- Microsoft Word. No, I'm kidding about that. Bring back my WordPerfect (or at least give me some version of WordPerfect's "Reveal Codes").
- The return to in-person oral arguments at the United States Supreme Court and at appellate courts across the country.
- The streaming real-time audio of United States Supreme Court arguments that has continued even after the return to in-person arguments.
- The opportunity to attend live conferences again. The Appellate Judges Education Institute Summit this year was fantastic. You should go next year if you have the opportunity.
- Our justice system--as flawed and imperfect as it might be. We can all work together to make it better.
- People who still try to objectively apply facts to law instead of deciding how they believe cases should turn out based on their own personal agenda. Yes, there are a few of these people left.
- Blogs like this that let nerdy appellate types bond over things like punctuation and citations (have you seen the posts about using "cleaned up" in parentheticals?).
Here's hoping that 2022 will bring us even more to be thankful for. Happy Thanksgiving!
Sunday, November 21, 2021
At the 2021 Summit of the Appellate Judges Education Institute on November 13, Judge James Earl Graves, Jr. of the Fifth Circuit made a plaintive plea: answer the question. After serving for a decade on the Mississippi Supreme Court before assuming his position on the federal appellate court, Graves said that too many advocates fail to follow that simple command. Justice Beth Watkins, who serves on a Texas Court of Appeals, moderated the panel and agreed wholeheartedly that answering the question posed seemed to be a stumbling point for lawyers.
Graves made his remarks during a discussion of “Top Tips for Top-Notch Oral Argument Answers.” The judge said that counsel will often be so focused on the message crafted in preparation for the argument that they fail to pay sufficient attention to the question or plow over it in order to advance their point. However, it is entirely possible that the framework that the advocate seeks to advance may be secondary to satisfying members of the court on something that struck them as critically important. Satisfying the judge by answering the question and either relating it to the pre-planned argument or pivoting to another topic deemed important to address ought to be counsel’s focus.
Reading the briefs, Graves said, will likely raise some questions for the judge, including issues that may have arisen in other cases that had come before the judge. Perhaps counsel had not considered the issues raised by the question before – or the judge may be mistaken about its relevance to this case. In either event, the question should be answered.
In dealing with a mistaken question, panelist Joshua B. Carpenter of Federal Defenders of Western North Carolina suggested a humble approach. He recalled a time when a judge insisted that Carpenter’s point could not be correct given the record evidence about mailboxes. Carpenter responded by gently suggesting that he could not recall mailboxes figuring in the record. The judge, however, continued to insist that the mailbox evidence definitively refuted Carpenter’s claim – until the judge received a note from a law clerk, informing him that the mailbox case was being argued the following week.
During oral argument earlier this month before the U.S. Supreme Court in New York St. Rifle & Pistol Ass’n, Inc. v. Bruen, a case I covered during my Summit panel on the current Supreme Court term, Deputy Solicitor General Brian Fletcher parried the questions he was asked with impressive aplomb, providing a number of examples of how to answer questions while turning to your own point. The case involved New York’s restrictions on gun licenses, one that most observers believe will be declared unconstitutional and that Fletcher was defending. The case appeared to turn on a combination of the Second Amendment’s text, history, and traditions in the States.
Early on, Justice Clarence Thomas asked Fletcher how to decide which States’ history and traditions should inform the Court on the proper approach to gun rights, adding “you focus a lot on western states, but the west is different.” Fletcher immediately agreed that the west is different, but indicated that the Court should be “skeptical about a tradition that’s only reflected in one state, indicating that that was a flaw in his opponent’s argument which relied on “some of the cases exclusively from the antebellum south.” His cases, he added, spanned the country.
Chief Justice John Roberts questioned Fletcher about why a license to bear arms is justifiable when other Bill of Rights guarantees were not subject to licensure. Fletcher agreed with the initial proposition that most rights do not permit licensing schemes, but then recognized that his opponent, in answer to a question from Justice Brett Kavanaugh, said that the challengers had no quarrel with licensing regimes for guns generally. That stance, Fletcher explained, illustrates that the “Second Amendment has a distinct history and tradition and that the way to be faithful . . . to that history and tradition [is] not to draw analogies to other rights with -- with their own histories and traditions.”
What makes these answers admirable is that they answered the question but made a point that was consistent with the arguments made in the briefs and even incorporated opponents’ statements made during the oral argument. It took questions from justices likely vote against Fletcher’s position and used them to make a point consistent with the concern voiced by the questioner but turned to the advocate’s advantage. While the New York gun law may not survive this constitutional challenge, Fletcher’s performance provided a classic example of what answering the question should mean.
Saturday, November 20, 2021
Our Federal Rules of Appellate Procedure require a brief’s Summary of Argument to “contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, . . . which must not merely repeat the argument headings.” Fed. R. App. P. 28(a)(7). As a judicial clerk, I saw brief after brief where the authors ignored this rule. Far too many attorneys essentially listed their point headings in sentence form, leaving the court with the impression counsel realized just before filing that they needed to add some sort of Summary of Argument.
Counsel who ignore the Summary of Argument lose a great opportunity to persuade busy judges, who might otherwise only skim the brief, and to set the tone for the entire case. The Summary gives an attorney the chance to introduce, persuasively, and to expressly set out the theory of the case. Moreover, using an interest-creating “hook” or very direct statement of the argument’s overall main points can also set the stage for later oral argument. Additionally, in large litigation, the Summaries of Argument might be the only thing many stakeholders read.
Recently, I read a fantastic Summary of Argument which really proves these points. In the pending Supreme Court cases on the Texas and Mississippi abortion bans, the Court received a record number of amicus briefs. As NPR reported, as of mid-September, the Court had an astonishing number--over 1,125--friend-of-the-Court briefs in the Mississippi case, Dobbs v. Jackson Women’s Health Org. See https://www.npr.org/2021/09/20/1038972266/supreme-court-date-roe-wade-dobbs-jackson-womens; see generally https://www.law.com/nationallawjournal/2021/05/24/avalanche-of-amicus-briefs-will-hit-justices-in-new-abortion-rights-case/?slreturn=20211020144237.
You can find the briefs in Dobbs at SCOTUSblog here: https://www.scotusblog.com/case-files/cases/whole-womans-health-v-jackson/. But how do you choose which briefs to read? I wanted to read a selection of amicus briefs from multiple sides of the issues, but I did not want to read 1,125 briefs. In selecting briefs to give my attention, I scanned the names of the authors, and then I read the Summaries of Argument from groups who intrigued me. One brief, filed by The Lawyers’ Committee for Civil Rights Under Law and seventeen other civil rights organizations, has a beautiful Summary of Argument that persuaded me to download and read the entire amicus brief.
The Lawyers’ Committee brief uses a strong statement of its overall argument on stare decisis to hook in the reader, beginning: “Because Mississippi H.B. 1510 . . . bans abortions beginning at 15 weeks’ gestation, it directly conflicts with this Court’s unambiguous precedent that pre-viability abortion bans are unconstitutional.” See https://www.supremecourt.gov/DocketPDF/19/19-1392/193123/20210921090114082_19-1392bsacLawyersCommitteeForCivilRightsUnderLaw1.pdf. Then, the brief sets up its argument there is no reason to ignore stare decisis here, stating, “[p]etitioners acknowledge this conflict by requesting that this Court overrule these landmark cases, which pregnant people have now relied upon for almost half a century.” Id. at 2. Next, the Summary of Argument gives a nice explanation of the analysis the Court should use to “take the extraordinary step of rejecting stare decisis,” noting “this Court must determine, among other things, whether a “special justification” exists” by examining the “legitimate expectations of those who have reasonably relied” on the precedent and the “real-world effects on the citizenry.” Id. at 2-3.
Thus, in just a few sentences, the Lawyers’ Committee brief states its position clearly and encourages the reader to continue. The entire Summary is only seven short paragraphs, and follows the approach of stating the Lawyers’ Committee’s conclusions directly, and then giving compelling, but brief, points supporting each conclusion.
In a field of more than 1,125 briefs, the Lawyers’ Committee helped its amicus brief stand out with a short, persuasive Summary of Argument which perfectly followed the Court’s rules and masterfully engaged the reader. The next time you draft a Summary of Argument, you might want to follow this wonderful example.
November 20, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (0)
Tuesday, September 28, 2021
Next week, the Supreme Court will return to a crowded docket filled with high-profile cases on abortion rights, religious school instruction, and criminal procedure. The Court will also be returning to in-person arguments sure to generate high drama for court watchers. But with the new term starting, it may have gone unnoticed that public opinion about the Court has fallen precipitously over the past year.
A Gallup poll released last week showed that American’s opinions of the Court have dropped to an all-time low of only 40 percent approving of its job performance, with another study by Marquette University noting a similarly precipitous drop in public approval. Some of the Court’s recent procedural changes may be an effort to rebuild its public image. As this blog has noted, the Court is changing its oral argument process to allow more individual questioning by Justices and less free-for-all interruption of the advocates—which may or may not be a positive development. But small tweaks to procedure are little salve to the many negative views of the Court as a wholly partisan institution that cannot resolve our nation’s most challenging and fundamental disagreements.
Some of the disapproval may stem from the Court’s recent emergency rulings that have ended a nationwide eviction moratorium and allowed a Texas law banning most abortions after six weeks of pregnancy to take effect. Such rulings, issued through an opaque process with little input and no public discussion, likely undermine public trust in the Court’s good faith. But the rulings themselves are also notable for the controversial views they adopted largely in the dark. Such opinions are the product of long-standing issues with the Court’s public image that have gone unresolved.
Partisanship on the Court, real or perceived, has undoubtedly increased in recent years. The nomination process has proven nothing but a political football for Congress. Those in the majority have permitted only favored nominations to go forward. Vetting prospective Justices may be high political theater, but it has little substantive meaning, aside from providing elected officials with the opportunity to publicly display loyalty to their tribe.
Not surprisingly, the product of that partisan process is a more partisan bench itself, at least in the eyes of the public. Divergent interpretive methods and lengthy, impenetrable rulings give the public the perception that decisions are motivated solely by policy preference, rather than principled legal stances. Those on the right and the left assume that the philosophical underpinnings of most opinions are gobbledygook used to justify a result the Justice had in mind all along.
Thus, Supreme Court reform has become a popular topic, especially for progressives convinced that adding Justices is the only way to equalize the Court’s intellectual balance. Whether such efforts would achieve balance or not, they are nakedly political. They seek not to reduce the partisan temperature on the Court, but to increase that on the Court’s liberal wing to equalize the passion of those Justices who lean conservative. Matching rancor with rancor forces politics further into the spotlight on the bench. New appointees would have an apparent mandate for progressive rulings, not intellectual honesty or judicial modesty.
Are there any other options? Perhaps a merit-based selection process for federal judges would convince the public that the courts are not overtly political. Or perhaps simpler changes to the way the Justices approach the decision-making process could be effective. I do not mean to suggest that Justices should frequently cow to public opinion polls when writing their decisions. But they should tend to the institutional goodwill that the Court has long been afforded. The Court would do well to engage openly and honestly with even the most controversial issues. It should avoid decisions masking policy preferences in opaque, scholarly language, especially when deciding without the benefit of full briefing and oral argument. The Justices should write simple, straightforward opinions. They should avoid interpretive debates that have proven both tiresome and inaccessible to most members of the public. They should aim for simplicity, clarify, and honesty in expressing their views. Put another way, writing the way we teach new law students to write might serve the Justices well.
September 28, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Writing, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)
Sunday, September 26, 2021
In the late 1980s, I was invited to participate in a project designed to help the Supreme Court of India address a backlog of cases that stretched back a decade. One obvious problem, it seemed to me, was that oral argument for a single case could span days or, in important matters, more than a week, as argument seemed to give rise to lengthy flights of oratory. On my second day in New Delhi, I met with members of their Supreme Court bar. Soon after the meeting began, one practitioner sought to confirm that the U.S. Supreme Court limited oral argument to 30 minutes per side. Upon receiving an affirmative answer to that question, he then asked, “how do you even warm up?”
The events of that morning recurred to me when I read the Supreme Court’s recent announcement that it was adopting a new procedure as oral argument returned to the courtroom after a pandemic-period process of argument by telephone. The procedure for telephone arguments gave the advocate two uninterrupted minutes to introduce the argument, followed by two minutes of questioning by each justice, seriatim, in order of descending seniority. The procedure was a significant departure from the free-for-all arguments that earned the Court the reputation as a hot bench.
That type of fast and furious questioning during in-court oral argument is often associated with the late Justice Antonin Scalia, who showed no reticence in lobbing question after question at counsel even during his freshman term. Scalia’s then-unusual amount of questioning reportedly caused Justice Lewis Powell to wonder if the new justice even realized the rest of them were there. By the time Justice Clarence Thomas joined the Court, nearly all justices had adopted an active questioning style, though Thomas, believing it was important to let the advocates speak, remained largely silent for years at a time. During the pandemic’s telephone procedure, though, Thomas, as the senior associate justice, became a regular questioner, showing that procedural changes in oral argument can affect its dynamics.
As the Court gets underway for the new term, it has adopted a combination of the two procedures. Advocates will still experience 30 minutes of sharp questioning, but then time is added to allow the justices to ask additional questions in order of seniority, just as they did when arguments were conducted by phone. One of my co-bloggers has already expressed approval of the new format https://tinyurl.com/2r49ufkc. I’m more skeptical.
Although the Court has admonished advocates to “respond directly to the questions posed,” rather than make “additional arguments not responsive to the question,” some oralists, no doubt will find the opportunity to relate an answer to an argument not yet covered in the courtroom irresistible. Those who can do that seamlessly will likely get away with it. One obvious change is that the new procedure is likely to extend oral argument to unknowable lengths of time. Perhaps the justices will have asked all their questions in the earlier period, but that seems unlikely. The extra time will not just lengthen the arguments, but will likely shift oral argument strategy, based on the knowledge that some issues the advocate purposely reserves are likely to be aired during the justice-by-justice round.
In addition, the new procedure may change a justice’s decision about when to ask a question. Some justices may choose to forego a question during the unstructured argument time because another justice is forcefully seeking an answer to something else during that earlier period. Rather than interrupt the line of questioning as often occurred in the past, a justice may reserve the issue for the latter time period. Doing so, however, could be a disservice. The answer elicited may show the issue to be a critical one that deserves more time for exploration than might remain, which may not have been true if raised earlier.
Moreover, when questions are posed in order of seniority, particularly subsequent to the usual oral-argument period, the number of questions left unasked will diminish by the time the more junior justices have their turns. If the junior justices begin to appear mute as the formal questioning ends, courtwatchers and the public may mistakenly take away a false impression of disinterest. To combat that image, a junior justice may feel impelled to jump into the conversation more actively in the earlier part of the argument than they might otherwise choose to do. The result will undoubtedly affect the nature of oral argument, but in an artificial way.
Appellate lawyers – and appellate courts – will watch closely as the new procedure is implemented. Advocates will adjust their strategies, the Court itself may tinker with the procedure as experience suggests changes, and federal circuit courts may choose to adopt it or a variant on it for their own arguments. When telephone arguments were in place, Chief Justice John Roberts kept a firm hand on limiting the justices to their allotted questioning time. The new procedure, which has no apparent time limits on the justices’ questions or the responses, may call for even more stark time management – perhaps even as strict as those enforced by Chief Justice Charles Evans Hughes, who, when time was up, could stop an advocate in the middle of the word “if.” With the new term commencing October 4, many people will be watching the process of oral argument with the same intensity as they scrutinize the merits of the arguments themselves.
Friday, September 24, 2021
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
The Supreme Court announced that it will hear an abortion case in the 2021 term that asks the court to overturn Roe v. Wade. The case concerns a Mississippi abortion law that bans abortions after 15 weeks with exceptions "only in medical emergencies or for severe fetal abnormality." The law includes no exception for rape or incest. The case is set to be heard on December 1. See reports from CNN, CNBC, and NPR.
The Supreme Court will adopt a hybrid argument format when it resumes in-person argument for the October term. The format will combine the pre-pandemic “free-for-all” style with the pandemic “turn-taking” style. Under the format, after a lawyers’ opening statements and during the allotted argument time, justices will pose questions as they did before the pandemic shut down. According to SCOTUSblog, during the argument, “the justices can presumably interrupt both the arguing lawyer and each other at will.” Then, after a lawyer’s argument time, “each Justice will have the opportunity to question that attorney individually. Questioning will proceed in order of seniority.” See the Guide and reports from Bloomberg and the ABA Journal.
On September 22, the Federalist Society aired “Supreme Court Preview: What is in Store for October Term 2021.” Find the YouTube link here.
Appellate Court Opinions and News
The Fourth Circuit vacated its recent ruling that gun laws barring sales to those under 21 are unconstitutional (a ruling we covered in July 2021). The court decided that the decision was rendered moot when the plaintiff turned twenty-one. According to the court, “[a]fter the opinion issued but before the mandate, [Plaintiff] turned 21. And that made her claims moot.” “Despite efforts to add parties and reframe her claimed injuries, it is too late to revive this case.” See the order and reports from Reuters and the Associated Press.
The Fifth Circuit heard a challenge to the Mississippi voting rights act. The case seeks to overturn a Mississippi law that permanently disenfranchises people who have been convicted of certain felonies. The argument can be accessed here. See a report from Courthouse News.
Wednesday, September 22, 2021
Oral argument in the supreme court has seen many changes over the years. In the early days of the Republic, counsel would often spend hours, sometimes days, arguing a single case. At that time, oral argument, rather than briefing, was the primary vehicle for counsel to communicate their points to the court. Over time, the emphasis switched from speaking to writing, and oral arguments got shorter--down to two hours shortly after the Civil War, to one hour in the early 20th Century, then to the current limit of 30 minutes in the late 1960's. How justices have used that time has also changed. Until the mid-1980's, it was common for justices to ask just a few questions--if any--during oral argument. It was much more an advocate's chance to pitch their view of the case. But all that changed with Justice Scalia's appointment in 1986, as his extensive questioning prompted other justices to take a more active role during arguments. One famous exception was Justice Thomas, who rarely spoke during argument, believing it rude to interrupt counsel's presentation.Before the pandemic, a "hot bench" was very much the norm, with most advocates having little time to make affirmative points between answering a bevy of questions from the court.
The pandemic changed all that, with the court opting to hold telephonic arguments with two new notable rules: (1) counsel had two minutes to say her piece and then (2) each justice had a set time in which to ask questions, uninterrupted by the other justices. Chief Justice Roberts kept the clock and enforced the time limits.
Some of these changes are here to stay, at least for now. SCOTUS this week released an updated oral argument guide ahead of returning to in-person oral arguments for OT 2021, which retains the pandemic changes and cautions counsel not to stray from a questioner's direction. A few thoughts on how this affects oral argument preparation and presentation going forward.
- Justice Thomas. All signs currently point to Justice Thomas continuing his active questioning at argument, since he will have a set time to ask questions without interrupting or being interrupted by anyone.
- Affirmative points. Going in to most oral arguments, counsel have a choice to make--start with an affirmative point, or pick up the conversation where it left off and start answering questions. Counsel can still take either tack in this new(ish) format, but I think counsel will tend to skew to making affirmative points, since this will be their best or only chance to control the topic of conversation.
- A little smoother? The new rules were somewhat awkward to enforce during telephonic arguments, as both the justices and counsel lacked visual cues to stop or start talking. In person, the rules should be a little smoother as the participants can see and react to each other.
- A little nicer? At its most hectic, oral argument can devolve a bit into a duel of perspectives with the justices sometimes speaking to other justices under the guise of questioning the advocate. I think the new format changes that dynamic a bit and makes the tone--for lack of a more lawyerly word--nicer. The justices are forced to deliberately triage their questions, but can't get interrupted by others and thus are not able to get into a back-and-forth with other justices.
Overall, I like the changes and think they improve both the tone and the presentation of argument. What do you think?
Thursday, September 16, 2021
For law students (and some lawyers) appellate argument can be a mystery. It's definitely not the first thing the average layperson thinks about when someone mentions "legal argument." Even when Law and Order made a half-hearted attempt to show an argument at an appellate court, it didn't get it right (for example, I've never gotten a ruling from the bench as soon as the argument was over). And the misconceptions about appellate argument sometimes lead to strange behavior even from attorneys: advocates objecting during opposing counsel's argument (yes, that really happens); appellant's attorneys requesting to reserve their entire time for rebuttal (I've seen that happen, too); and lawyers calling opposing counsel their "friend" (okay, some U.S. Supreme Court advocates do that and maybe some of you think it is fine, too).
De-mystifying appellate argument means not only understanding the basics but also understanding the nuances. Anyone who has ever argued in an appellate court or taught students how to make oral arguments knows the basics: make the argument conversational; be prepared for questions; smoothly return to your argument after answering a question. And, of course, an advocate should know the substance of an argument inside and out. But what are some of the finer points of appellate argument that often are missed both by advocates and students?
- Exude Confidence: Doing my best Yogi Berra imitation, I often tell students that being successful in an appellate argument is 95% knowing the facts and the law and 95% sounding like you know what you are talking about. In reality, knowing the facts and the law in depth should lead to more confidence. In the end, why should an appellate court agree with your argument if you don't sound like you believe in what you saying? Even if you aren't so sure yourself, you are representing a client expecting zealous representation. And the other side is going to have a zealous advocate, so you should be one as well.
- Control Your Body Language: Even before you say your first word at an appellate argument, your body is already speaking to the court. The body tells the truth. If you are confident in what you are going to say (see above), then approach the lectern with confidence and own the stage you have been given.
- Vary Delivery: An appellate argument should ebb and flow. Much like a singing performance is rarely effective at 100% volume throughout, an argument without variation will either put the court to sleep or, even worse, cause you to lose your case. Vary pitch, vary pace, vary volume. This will hold the court's attention, properly emphasize the points you want to emphasize, and downplay facts and law that are bad for your argument.
- Pause: Oral advocates often feel that any dead time in their argument, even a brief second or two, is bad. On the contrary, oral advocates probably don't pause enough. Some pauses are good for effect; others are good because they allow the advocate more time to reflect upon an answer. The mind works very quickly, so it doesn't have to be (and you don't want it to be) a long pause if you are trying to come up with an answer. I often suggest to students that they begin drinking some water, if available, when a question is being asked. Judges will not be thrown off by an advocate finishing their sip briefly as the question concludes. This buys just a little more time for formulating the perfect (or near-perfect) answer.
- Control Your Zone of Authority: In conjunction with the use of body language, advocates should control their zone of authority--the area immediately around them that they control. Look judges in the eye, don't break the zone by bending over or looking around the courtroom, keep gestures within the zone, and never point. As my students also always hear me say, don't take a pen with you to the lectern! You likely won't have the opportunity to write anything down while you are arguing. And you are more likely to cause a distraction with the pen by waving it around, pointing with it, or tapping it on the lectern.
- Start/Finish Strong: Start the argument with your theme and end with your theme. Grab the court's attention at the beginning. Then remind the court again what the case is really about when you conclude. Listeners (like readers) tend to remember and are more affected by the beginning and the end of an argument than what is in the middle.
The basics of an appellate argument are important without a doubt. But mastering the nuances will make an argument even more polished and persuasive.
Wednesday, September 8, 2021
The Supreme Court's Office of Public Information announced today that oral arguments for the rest of the calendar year will take place in the Courtroom, but sessions will be closed to the public. Understandable. But here's the good thing: the Court anticipates that it will continue to provide a live audio feed of oral argument, at least for the period where public access to the Courtroom is restricted.
So the Court will return to its traditional unstructured approach to oral arguments rather than continue with the seriatim-questioning approach it adopted for telephonic arguments during the pandemic. And the public will be able to follow arguments in high profile cases like New York State Rifle & Pistol Association v. Bruen in real time.
Sunday, August 29, 2021
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
The Supreme Court struck a CDC moratorium on evictions during the pandemic. An earlier nationwide moratorium lapsed on July 31, prompting the CDC to impose its own moratorium. This CDC moratorium temporarily halted evictions in counties with “substantial and high levels” of virus transmissions. The Court’s decision allows evictions to resume. The decision held that the CDC lacks the authority to act without explicit congressional authorization and ruled that, “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” See the per curium order and reports from the Associate Press, NPR, and The Washington Post.
The Supreme Court revived the previous administration’s “remain in Mexico” asylum policy, refusing to stay a ruling that banned the Biden administration’s attempt end the policy. The policy requires asylum seekers to remain in Mexico while they await hearings in the United States. The Court stated that the decision to end the policy appeared to be arbitrary and capricious. The decision leaves in place the lower court’s ban, which will be heard by an appeals court. See the order and reports from Reuters, The New York Times, APNews, and NPR.
Appellate Court Opinions and News
In a rehearing on the issue, the Second Circuit let stand a lower court’s refusal to grant an injunction against anti-abortion protestors, finding that the district court did not abuse its discretion. New York State sued 13 protestors arguing that protesters crowded women, made death threats against escorts, and blocked the path with posters, which violated the Freedom of Access to Clinic Entrances Act, New York State Clinic Access Act, and New York City's Access to Reproductive Health Care Facilities Act. The district decision rejected the injunction motion, finding that the state had not shown that it would face irreparable harm. The panel on rehearing did not rule on the merits because it found that the lower court did not abuse its "considerable discretion" in denying the injunction. See the order and reports from Reuters and Courthouse News.
The Ninth Circuit affirmed a lower court’s ruling that denied a motion for preliminary injunction by a landlord group attempting to stop Los Angeles from enforcing an eviction moratorium. The court determined that the group could not show a likelihood of success on the merits, finding that, “even if the eviction moratorium was a substantial impairment of contractual relations,” the city “fairly tied the moratorium to its stated goal of preventing displacement from homes” during a pandemic. See order and reports from Bloomberg and The California Globe.
The Fourth Circuit affirmed the death sentence for the gunman who killed nine members of a Black Charleston church in a racially motivated shooting. The court stated that “[n]o cold record or careful parsing . . . can capture the full horror of what [the shooter] did” and that “[h]is crimes qualify him for the harshest penalty that a just society can impose.” The court rejected the argument that the gunman should have been ruled incompetent. The gunman is the first person in the US to be sentenced to death for a federal hate crime. See the ruling and reports from NPR, The Washington Post, and USA Today.
Effective Appellate Advocacy
On September 2, the Ninth Circuit and the Federal Bar Association are sponsoring a free program featuring Judge Margaret McKeown. Judge McKeown will discuss effective brief writing and oral argument. Find information here.
Wednesday, August 18, 2021
The things that helped me most as a law student and young attorney were learning how attorneys that I admired did things--what concrete things did they do to get ready for trial, to understand a record, to prepare for oral argument, etc. I've kept mental (and sometimes written) lists of those things over the years and have tried to pass them on to law students and young attorneys. Here's a checklist I've put together for oral arguments:
- Prepare an outline, go over it a few times the night before.
Just like law school—get your case down to its essence and get out all of the points you want to hit. Odds are you won’t get to everything, and almost certainly not in the order you want to get to it, but it isn’t about you, it’s about the court and its concerns.
Some necessary elements:
a. Decide the points you want/need to make, and make them prominent—put them first, in bold, highlighted, etc.
b. Include record cites and case names after assertions you’re likely to get questions/pushback on.
c. Leave space to write in questions/answers that come up during opposing counsel’s argument.
- Re-read the relevant parts of the record—trial transcript, pleadings, jury instructions, etc. What you read will depend on the case. If it’s a small record, re-read everything; if it’s a large one, then just read pertinent parts. It helps to have all the stuff in the case fresh in your mind when you go to court.
- Re-read the briefs. You’ll be surprised how much you forget about even your own arguments. If you find good cites here, include them in your outline.
- Re-read important cases, statutes, and rules. Memorize if central to appeal issues.
- Spend at least one full day coming up with questions. This was some of the most helpful advice I got when I started out. Don’t neglect very basic questions like what happens to the case if you win/lose.
- Find a quiet place to just think things through and strategize about argument. In normal times, I would come up with really good stuff on the train ride into work, mostly staring out the window and thinking.
- Explain the case to a non-lawyer, see how well you have it boiled down.
- Say your opening out loud—in the car, in the shower, in your office, wherever—just practice somewhere.
- Practice giving your argument while being interrupted with questions (this was John G. Roberts’s approach when he was an appellate attorney).
- Watch other oral arguments—find what style works for you.
- Keep issues on the backburner in your mind—you’ll be surprised what answers come at random times. Write them down when they come
- Have a good argument decompression ritual—get your favorite sandwich, take a walk, do something to get the adrenaline out.
- Come back and listen online to your argument about a week later. Listen for what worked, what did not. Then work on verbal tics (“um,” “so,” “you know,” etc.), pacing, responses, interruptions, etc., and incorporate these into your prep for next time.
Saturday, August 7, 2021
In law school or in law practice, many students will hear this statement: “if the law isn’t on your side, argue the facts; if the facts aren’t on your side, argue the law.”
Well, guess what?
Sometimes, neither the law nor the facts support your argument.
In your career, you will find yourself in the unenviable position of having to make a ‘bad’ argument before a court. To be sure, a ‘bad’ argument is not a frivolous argument. Rather, a ‘bad’ argument is one where the relevant precedent doesn’t support your position. It is one where the facts and equities are unfavorable to your client. In short, a ‘bad’ argument is one where your chances of winning are about as good as O.J. Simpson admitting that he killed Nicole Brown and Ronald Goldman.
So, what should you do to make a ‘bad’ argument better? Consider the following hypothetical:
You are representing a congressman – and former professor at a prestigious college – who is suing a newspaper for allegedly defamatory statements that the newspaper made during the congressman’s unsuccessful reelection campaign, where he lost by less than 500 votes. Specifically, four days before the election, the newspaper published an article titled “Congressman receives a grade of ‘F’ from former students.” In that article, the newspaper quoted several negative reviews from the congressman’s former students that were anonymously posted on www.criticizemyprofessor.com. The reviews included statements that the congressman was a “stupid and awful professor,” a “narcissistic jerk who based grades on whether he liked you,” “an insensitive elitist who routinely made statements in class that offended students and created an uncomfortable learning environment,” and “a man who has caused lasting trauma to his students.” When publishing this article, the newspaper contacted the college to inquire about the congressman’s performance, but the college declined to comment. Additionally, the newspaper failed to include numerous reviews from another website – www.praisemyprofesssor.com – where many former students anonymously and unanimously posted excellent reviews of the congressman.
After the election, the newspaper acknowledged that it “could have done better” by including the statements from www.praisemyprofesssor.com but stated that “we had no reason to believe that the statements posted on www.criticizemyprofessor.com were false” and posted them “with full confidence in their truth.” Indeed, there is no evidence to suggest that the comments made on either website are false.
As the attorney representing the congressman, you obviously have an uphill battle.
Not surprisingly, the trial court recently granted a motion to dismiss in the newspaper’s favor. The court held that under New York Times v. Sullivan, the congressman could only succeed on his defamation claim if he proved that the statements were false and made with actual malice, namely, with knowledge of their [the statements’] falsity or with reckless disregard for the truth or falsity of the statements. Based on the newspaper’s statements, its attempt to contact the congressman’s former employer regarding his performance, and the lack of evidence that the statements were false, the court held that this standard was not met.
The congressman decided to appeal and now you are preparing for oral argument. Given the facts, the actual malice standard, and the lack of evidence of falsity, you have a very ‘bad’ argument.
So, what can you do to make this ‘bad’ argument as persuasive as possible?
1. Create a nuanced argument that renders governing precedent less controlling
When you are presenting a bad argument, the worst approach is to be reactive. Don’t spend your time trying to explain away or distinguish controlling precedent, or trying to depict facts and evidence in an unjustifiably favorable light. Instead, admit that the law does not support your position. Acknowledge the unfavorable facts. After all, when you have to make a ‘bad’ argument, your credibility is the first and essential step to making a ‘bad’ argument persuasive. You don’t want the court to think that you are asking it to ignore precedent or accept implausible justifications to distinguish that precedent. You don’t want the court to think that you are minimizing or ignoring unfavorable facts.
Instead, develop a nuanced and original argument that renders precedent a little less controlling and the unfavorable facts a little less damaging. In so doing, you will enhance the likelihood of convincing the court that the rule or outcome for which you advocate is novel and neither inconsistent with nor contrary to existing law.
Consider the above example. With respect to the actual malice standard, how would you address the argument that the newspaper’s conduct doesn’t even remotely satisfy this standard?
Well, you could argue that the court should clarify its interpretation of “reckless disregard” for the truth or falsity of a statement. In so doing, you could argue that providing an incomplete, inaccurate, and thus distorted view of the facts to the public is a “reckless disregard” for the truth because it portrays an individual in a false and potentially defamatory light. By way of analogy, what the newspaper did is tantamount to a newspaper publishing an article stating that the congressman had previously been convicted of sexual assault while omitting that the conviction was overturned on appeal for lack of sufficient evidence. Furthermore, recklessness can be inferred because the newspaper could have easily discovered and published the statements on www.praisemyprofesssor.com; the newspaper’s choice not to portrayed the congressman in a false and defamatory light.
This is not to say, of course, that the above argument is persuasive and will lead to a successful result. It is to say, however, that it will likely make a ‘bad’ argument better and more palatable to the court.
Put simply, think outside of the box. Take a chance. Be creative. And in so doing, convince the court that the rule or outcome you seek is not a radical departure from existing law.
2. Ask questions that put your opponent on the defensive and expose weaknesses in your opponent’s argument
When you have to make a ‘bad’ argument, you should take an offensive, not defensive approach. Specifically, you should confront directly the weaknesses in your opponent’s argument. One way to do so is by posing simple questions that show how your opponent’s argument would lead to an unjust and unfair result, and constitute bad law and bad policy.
Below are a few examples relating to the above hypothetical:
So, it’s ok for a newspaper to selectively and with impunity publish facts about a public official that portray that official in a false and defamatory light?
So, it’s permissible for a public official’s reputation to be irreparably damaged because a newspaper concocted a false and misleading narrative by omitting student reviews that undermined that narrative – and suppressed the truth?
So, the court’s interpretation of ‘reckless’ means that it is perfectly fine for a newspaper to cherry-pick its sources to propagate a fake narrative that irreparably damages a public official and influences an election?
These questions aren’t perfect, but you get the point. By asking direct questions, you put your opponent on the defensive. You enable the court to view the issue in a different light. And you allow the court to answer the questions in a way that will lead to a favorable outcome.
3. Forget the straw man – attack and undermine your opponent’s best argument
Never, never, never avoid the elephant in the room. And never make a straw man argument.
Instead, attack your opponent’s best argument. Explain how the rule your opponent supports will lead to unfair and unjust consequences in this and future cases. For example, regarding the hypothetical above, explain why your opponent’s argument makes it nearly impossible for public officials to ever obtain remedies for defamatory statements, and why it makes it nearly always possible for newspapers to publish misleading information with impunity.
4. Use quantitative and qualitative data to maximize the persuasive value of your argument
Quantitative and qualitative data enhances the persuasive of any legal argument and can sometimes transform a ‘bad’ argument into a relatively persuasive argument. For example, regarding the above hypothetical, consider the following use of empirical data relating to the actual malice standard:
In the last ten years, relevant empirical data shows that the country’s ten most widely circulated newspapers published over 1,000 articles that contained false and misleading information about public officials. Despite over 100 lawsuits by public officials seeking damages for defamation, only one lawsuit led to a finding in the public official’s favor. This data reveals a disturbing fact: newspapers can publish false and misleading information with impunity because the actual malice standard – particularly the stringent interpretation of “reckless disregard” – serves as an impenetrable shield to any accountability whatsoever.
Although this argument obviously isn’t perfect, it does give the court something to think about, namely, that the actual malice standard over-protects newspapers and under-protects individuals who are damaged by the dissemination of incomplete and misleading information.
5. If the court isn’t likely to agree with anything you say, make sure that you get the court to agree with something you say
When presenting a ‘bad’ argument in a brief or at an oral argument, you will in many instances know with relative confidence whether the court is likely to respond with skepticism and even hostility to your position.
Consider the hypothetical above. An appellate court will almost certainly hold that the newspaper’s conduct does not even remotely support a defamation claim because there is no evidence that the statements were false or, even if they were false, that the newspaper’s conduct satisfies the actual malice standard. Indeed, you may have a nightmare on the eve of oral argument in which a judge on the appellate panel says something like this:
So, um, counselor, how can you honestly and with a straight face argue that the newspaper’s statements, which you don’t contend are false, can miraculously show a ‘reckless disregard for truth’ and satisfy the actual malice standard? What is wrong with you? How could you possibly present such a ridiculous argument to this court?
Uh oh. I wouldn’t want to be that attorney.
So, what should you do?
Well, you can decide to not show up for court, immediately quit the legal profession, and become a comedian. Or you can respond by getting the judge to agree with you on at least one proposition. For example, you could respond as follows:
I’m glad that you asked that question. To begin with, I think we can all agree that disseminating false, incomplete, and misleading information about any individual to the public can cause substantial and irreversible reputation harm. And we can probably also agree that a healthy democracy demands that newspapers have the right – indeed the obligation – to publish statements that criticize and reveal unfavorable facts about public figures. But I respectfully disagree with your contention that the statements aren’t false. When read in isolation, that may be true, but when read in context, the statements are decidedly untrue. Put simply, disseminating incomplete and thus misleading statements about an individual unquestionably portrays that individual in a false and defamatory light, thus making the message conveyed by the statements – that the congressman was a terrible professor – demonstrably false. Consider, for example, what a reasonable person would have thought of the congressman if the newspaper had published the statements on both www.criticizemyprofessor.com and www.praisemyprofesssor.com. The answer should be obvious: a reasonable person would view the congressman in a more favorable – and truthful – light. And that is the problem. Consequently, the dissemination of incomplete and misleading information is itself false and defamatory.
Now, this answer is undoubtedly not perfect and the flaws are obvious. It may not sway the judge and it almost certainly will not convince the court that the newspaper’s statements support a defamation claim. But remember that you are stuck with a ‘bad’ argument and trying to make it good enough to convince the court to reconsider the merits of your position. This response does raise an interesting point that may cause the court to pause for a moment and rethink its opinion concerning whether the statements could be construed as defamatory.
6. Argue with emotion and confidence
Perception matters. Confidence and passion matter. Especially when you are the underdog.
When presenting an oral argument, for example, you should use verbal and non-verbal techniques to show that you believe passionately and confidently in your argument, and in the outcome you seek. It doesn’t matter that you are presenting a ‘bad’ argument. What matters is that you advocate intelligently and forcefully as if your argument is and should be considered meritorious. When you exhibit confidence and passion (and make a well-structured argument), you enhance the likelihood that the court will think twice and question its preconceived notions or assumptions about your argument’s validity.
7. Appeal to the court’s sense of fairness and justice
Judges want to do the right thing. And judges will often engage in legal gymnastics to arrive at the outcome that they believe is just. If you doubt that, read Griswold v. Connecticut and Roe v. Wade, where the United States Supreme Court interpreted the Fourteenth Amendment’s Due Process Clause in a constitutionally indefensible manner to reach results that arguably reflected the majority’s policy predilections.
Regardless, because constitutional provisions, legal rules, and statutes are often broadly phrased, and precedent is often distinguishable, a court can in, many instances, reach a variety of justifiable outcomes. You can bet that the outcome a court reaches will reflect the court’s belief about what constitutes the fairest and most just result. After all, judges are not robots. They don’t just mechanically apply the law. They want to do the right thing -- or simply reach outcomes that reflect their policy preferences.
Ultimately, these strategies may not always be successful, but they will make your ‘bad’ argument better and increase the likelihood of succeeding on the merits.
Sunday, July 18, 2021
This month marks 80 years since Robert H. Jackson took the bench as a U.S. Supreme Court justice. Students of the Court remember him as one of the most elegant writers to grace the pages of U.S. Reports. Jackson also notably took a leave of absence from the Court to serve as chief prosecutor at the Nuremberg war crimes trial, an extracurricular activity that generated some controversy.
His service on the Court and at Nuremberg overshadows contemporary memory of his earlier service both as Attorney General and as Solicitor General. It was in the latter role, as an advocate before the Court on which he would eventually sit, that caused no less a luminary than Justice Louis Brandeis to suggest that Jackson should serve as Solicitor General for life.
Yet, despite such high praise, Jackson, at the time newly a justice, famously wrote a 1951 article on oral advocacy that expressed doubt about his effectiveness as an advocate. In it, he revealed that he composed three arguments each time he went before the bench. The first argument anticipated a well-planned presentation designed to hit all the critical points needed to prevail and was, of course, presented in an inexorably logical order. The second one did not match the care taken to construct the first one, because it was the argument actually made in court. Jackson described that argument as “interrupted, incoherent, disjointed, disappointing.” The third argument was the “utterly devastating argument that I thought of after going to bed that night.” In other words, the one he felt he should have made.
Even with his experience, Jackson was at a loss on how to avoid the disruption caused by justices “much given to interrogation.” Although the hot bench familiar to him was markedly cooler than that of today’s Supreme Court, a flurry of inquiries on topics outside the flow of his intended argument induced Jackson to adopt a categorical opposition to splitting an argument with a co-counsel.
He explained his position was a product of experience in a case where he was supposed to cover the statute in question while his co-counsel focused upon the regulatory scheme of the agency that employed him. When he rose to speak, the justices peppered him with questions about the regulations. He had not prepared that part of the case and had not anticipated that the case could turn on it. By the time his co-counsel took over, the Court had exhausted their interest in the regulations and now proceeded to ask about the statute. The planned presentation was rendered asunder.
Much of Jackson’s advice seems like an artifact of an earlier era. He repeatedly advises that the facts bear careful and scrupulous description and yet warns that a factual description that attempts to reargue findings of fact or a verdict will be met with “embarrassing judicial impatience.” He also suggests that an advocate should not assume that the panel is familiar with the statute at issue. Modern practice, in contrast, safely presumes that the judges have read the briefs, understand the facts, and the applicable statute, even if argument must focus on some aspect that determines the question presented. Jackson also warns that defeat can be snapped from the jaws of victory in rebuttal, suggesting that the “most experienced advocates make least use of the privilege.” That advice seems too uncompromising. While there are times that waiver of rebuttal makes good sense, experienced advocates often make productive use of that opportunity.
While some of Jackson’s advice appears dated and tied to a different era of oral advocacy, other points confirm that some things never change. Tying your argument to a judge’s extrajudicial writings or speeches, Jackson says, “is a matter of taste,” but usually “bad taste.” He denounces memorized orations, brief-reading, and rambling discourses as inappropriate.
Consistent with the most common advice an oral advocate receives, Jackson emphasizes comprehensive preparation. Knowing the facts, the cases, the context, and the flow of relevant doctrine is a given. Opening with a clear presentation of why the facts or law or a combination of the two inexorably lead to a favorable decision sets the stage for the questions that will likely follow. You want those questions to play to your strengths and to set the stage so that the bench poses difficult questions that exposes weaknesses in the contrary argument being made by an opponent.
Jackson also recognizes that questions from the bench may appear hostile to an advocate’s position. He warns against adopting that assumption, though, because the questions may seek to do nothing more than sharpen the advocate’s position.
A court of last resort will have a consistent group of judges over a significant period of time. Much like the U.S. Supreme Court of today, there may be some fissures that sharply divide the justices. Jackson acknowledges that this will often present a dilemma to an advocate. It apparently did to him. For that reason, he states plainly that he has no advice and suggests reliance on wit.
Jackson’s article amounts to something from a time capsule, undoubtedly presenting a thoughtful and practical introduction to oral advocacy as it was practiced at the highest levels of his day. And, while some aspects of oral advocacy remain the same, others have changed significantly. One thing has not. Jackson ends his article with a parable about three stone masons asked about what they were doing. The first responds that he is doing a job. A second explains that he is carving a pattern. The third indicates he is making a cathedral. He closes by saying that “it lifts up the judge’s heart when an advocate stands at the bar who knows he is building a Cathedral.” Successful advocacy forms the facts and law into a work of architecture. It did so then and does so now.
 Robert H. Jackson, Advocacy before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A J. 801 (1951).
Saturday, July 17, 2021
In a recent meeting about teaching Legal Writing, an experienced appellate advocate mentioned practicing “power poses” as part of her prep for an oral argument at the Ninth Circuit. While her comment was a nice way to add humor and humanity to the conversation, the idea of using power poses to add confidence before oral argument stuck with me long after the meeting concluded.
I decided to check out the TED Talk on power poses the advocate mentioned in our meeting: Social Psychologist and Harvard Business Law Professor Amy Cuddy’s TEDGlobal 2012 Your Body Language May Shape Who You Are. https://www.ted.com/talks/amy_cuddy_your_body_language_may_shape_who_you_are. The TED Talk website has a disclaimer at the beginning of Prof. Cuddy’s talk, explaining, “Some of the findings presented in this talk have been referenced in an ongoing debate among social scientists about robustness and reproducibility.” Id. Keeping in mind the debate about the science behind some of Prof. Cuddy’s premises, I decided to focus more on her overall points about body language.
Prof. Cuddy’s general theme is that "power posing" by standing or sitting in a posture of confidence--even when we do not feel confident--can boost subjective feelings of confidence and thereby possibly impact success. Id. She initially focused on non-verbal communications, especially posture, among her MBA students. Cuddy noticed her students who made themselves smaller, with hunched shoulders and crossed arms and legs, tended to earn lower grades than the students whose posture took more space. Looking at controlled human subject students and primates with her collaborator, Prof. Dana Carney of Berkeley, Cuddy also saw a connection between testosterone and cortisone levels and use of power poses like the “Wonder Woman” and “Victory” stances with arms outstretched. Thus, Prof. Cuddy hypothesized people who sit hunched over before a job interview, or in our case an oral argument, will have less confidence than those who stand for a few minutes privately in a power pose before an important talk. See id. Prof. Cuddy stressed she does not believe the power poses are for use “with other people” or to have any impact on substance, but instead can help us feel more comfortable with ourselves and thus preform better. Id.
Commentator Kate Torgovnick May summarized Prof. Cuddy’s point as: “[B]efore heading into a job interview, giving a big speech or attempting an athletic feat . . . everyone should spend two minutes power posing [by] adopting the stances associated with confidence, power and achievement — chest lifted, head held high, arms either up or propped on the hips.” Kate Torgovnick May, Some Examples of How Power Posing Can Actually Boost your Confidence (Oct. 1, 2012) https://blog.ted.com/10-examples-of-how-power-posing-can-work-to-boost-your-confidence/. Torgovnick May provides several testimonials from people who successfully used “Wonder Woman” or other power poses before important classes, interviews, and presentations. See, e.g., id. (“It’s nice to see that there’s scientific support for Oscar Hammerstein’s King and I lyrics: ‘Whenever I feel afraid, I hold my head erect and whistle a happy tune, so no one will suspect I’m afraid …The result of this deception is very strange to tell, for when I fool the people I fear, I fool myself as well.’”)
In bringing these ideas back to my own life, and to our Appellate Advocacy blog, the mom in me could not help but remember my own lawyer mother teaching my sister and me to walk with books on our heads. My mom--like so many other parents—wanted her girls to stand up straight and have confidence. I regularly chide my very tall sons for hunching over, admonishing them to “put back” their shoulders and “stand up straight.” While the scientific community debates the precise reliability of Prof. Cuddy’s work, I know standing with confidence can indeed help me feel and look more confident in court and in the classroom.
Therefore, I recommend you check out Prof. Cuddy’s TED Talk, as well as the debate on her research. And the next time you are especially nervous about an oral argument or presentation, spend two minutes in a power pose. Hopefully, you can smile thinking about the parent, auntie, teacher, or other adult who told you to “stand up straight” years ago. And perhaps this technique will give you increased confidence too.
Wednesday, July 7, 2021
A few months ago I found myself drafting a motion for rehearing in an appeal that I had thought would be a fairly easy win for my client. It involved the interpretation of an easement, and there were three strong reasons why the trial court's rulings should have been reversed. The court had denied the requests for oral argument and a new justice issued an opinion that went in a direction neither party really argued.
As I was drafting the motion for rehearing, I asked myself (as I always do when drafting such a motion) where things had gone wrong. The court's opinion was based on what I considered to be dangerously flawed presumptions about provisions that were fairly standard, and that would cause significant problems in the industry if they were interpreted in this new way. If only the court had granted oral argument, and they had telegraphed their understanding, I could have addressed the issue then.
Unfortunately, while oral argument on appeal is considered to be very important to advocates, it is increasingly disfavored by courts. The courts have grown weary of poor presentations that waste a considerable amount of time, and ultimately provide little value. As such, oral arguments are being denied in many courts and cases submitted entirely on the briefs.
The problem with this is that, when done well, oral argument can explore and test arguments in ways that are difficult to test by the briefing alone. We need to convince the courts that it is worth their time again.
This second edition of Point Well Made: Persuasive Oral Advocacy, a practice guide for new and old advocates alike, could go far in helping courts see the value of oral argument again. New lawyers can pick up the book and find simple checklists and guidelines that will help them learn how to properly craft and present their arguments. Seasoned attorneys will find reminders and new tips on remote argument that will keep them updated and current on both thinking and style. And if the practitioners follow this advice, the courts may find oral argument helpful again.
Point Well Made begins with a short primer on rhetoric and them moves straight into audience analysis. New practitioners in particular will find value in acquainting themselves with the mindset and concerns of their judges and justices. Old practitioners may need the reminder that our justices have needs that should be met as the focus of the argument, not just a side-effect.
The book then provides a step-by-step checklist, with examples, of how to prepare the argument (with attention paid to theme development, story telling, and how to handle the law), how to handle questions, and how to draft the argument outline and "script." Both the guidance on how to craft the argument and how to handle questions from different "types" of justices are very valuable to new practitioners.
The authors also provide guidance on verbal and non-verbal communication skills to employ and refine in presenting the argument. They start with the six most common body language errors, then proceed to provide practical advice on how to overcome those errors and avoid others. Thankfully, they recognize that "one size does not fit all" when it comes to body language, and recommend instead variations of stances and techniques that each speaker can try out themselves to develop their own style.
The authors end this second edition with a detailed discussion of the "new normal" of remote argument. I wish I had been given this guidance at the beginning of my time in quarantine. During quarantine (and since) I argued motions via Zoom, participated in a Zoom trial, and have had oral arguments via Zoom. As a result, I learned many of the lessons presented in the book regarding camera placement, lighting, and so on by trial and error. But even with that experience, I found many of the remote argument tips to be helpful and plan on employing them in my next remote argument, particularly with regard to vocal inflection and ramping up intensity, since we tend to appear more "flat" on remote viewing.
Finally, the authors have included appendices with useful checklists for each topical chapter, as well as short exercises to implement the concepts. Practitioners and students alike will find these short exercises to be helpful in driving home the points taught.
As an appellate specialist who also coaches moot court, I wince a bit each time a justice sitting as a volunteer on a moot court panel comments on how much better prepared and practiced the students are than the majority of the "real" lawyers who appear before them in court. If more practitioners read and applied the lessons in Point Well Made, perhaps I would hear that criticism less often, and perhaps the courts would be willing to hear more oral arguments again.
(Image credit: A lithograph from Honore Daumier, Les Gens de Justice, 1845.)
Friday, July 2, 2021
Persuading other people to adopt your point of view, whether in a courtroom, a faculty meeting, a debate, or any other context, depends on how you deliver your argument. Below are tips to maximize the persuasive value of an argument.
1. Persuasion is about perception
In many instances, people do not decide whether to accept a particular argument based on facts or science. Rather, their decision is based on their perception of you. And that perception will be influenced substantially by how you deliver your argument. The most important aspect of that delivery is confidence. If you appear confident, the audience will be more likely to agree with you, regardless of contrary facts or evidence.
Simply put, confidence is everything.
Confident advocates take a stand and are bold.
They are unequivocal.
They never get flustered.
They never act surprised.
They never say “um,” or, “I think,” or, “I’m not entirely sure.”
When they receive hostile questions, they react by stating, “I’m really glad that you asked that question.”
In short, if you win the battle of perception, you also likely win the war of persuasion.
2. Make your audience initially agree with you by connecting your argument to commonly accepted values
To win an argument at the end, you have to win at the beginning. And winning at the beginning means connecting your argument to broader values upon which nearly all people can agree. If people agree with the broader values underlying your argument, they will be more likely to accept the specific aspects of that argument. Consider the following examples of two hypothetical lawyers arguing that the First Amendment protects “hate speech”:
The First Amendment protects hate speech because the Founders believed that the right to free speech was essential to liberty and democracy. As a result, offensive, distasteful, and unpopular ideas must be tolerated to ensure that a true marketplace of ideas exists and that people are not threatened by government censorship. Therefore, hate speech, however one might define such speech, must be tolerated.
Ok, whatever. Now consider this example:
Speech that degrades, denigrates, and demeans other people can be terribly hurtful. I’m sure that we can all recall a moment in our lives when another person said something demeaning to us and remember the pain that it caused. And I’m sure we wish that all people realized the harm that words can cause and respected the dignity of every human being. At the same time, most people don’t want the government to become the speech police. They don’t want the government to arbitrarily decide what speech is considered “hate speech,” and what speech is not, thus giving it the power to censor whatever ideas it deems unpopular. If the government had that power, liberty, autonomy, and democracy would be threatened. For these reasons, as much as we may despise those who degrade, denigrate, and demean others, the answer is to fight back by using our free speech rights, not to give the government carte blanche to dictate what we can and cannot say.
The second example appeals to values that most reasonable people accept and view as essential to a free society. And when they agree with these broader values, they are likely to accept the argument that hate speech must receive First Amendment protection.
Simply put, if they agree with you at the beginning, they are more likely to agree with you at the end.
3. It’s ok to be a little unprofessional in the right circumstances
Advocates who are authentic, likable, relatable, and passionate are more likely to sway an audience. And in some instances, authenticity means ‘being real’ and dispensing with formalities when making an argument. In short, sometimes it’s ok to be a little unprofessional. Why? Because it conveys your passion. It shows that you believe in your argument.
Consider the following examples involving two hypothetical appellate advocates who are arguing to the New Jersey Supreme Court the issue of whether defense counsel's performance at trial violated the Sixth Amendment:
In Strickland v. Washington, the United States Supreme Court held that a Sixth Amendment violation occurs where counsel’s performance is negligent and where such negligence results in prejudice, meaning that, but for counsel’s negligence, the outcome of the trial would have been different. This case is a perfect example of ineffective assistance of counsel. Counsel slept during parts of the trial. Counsel admitted to having a cocaine addiction and to being an alcoholic. Yet, the appellate court held that this conduct was harmless error because my client confessed to the crime. Now my client will be incarcerated for twenty-five years for voluntary manslaughter. This decision was erroneous and should be reversed.
Yeah, right. Based on that argument, the appellate court’s decision isn’t going to be reversed. Now consider this example:
My client was represented by counsel who, during the trial, was addicted to and snorting cocaine. He was represented by counsel who smelled of alcohol. And due to the hangovers caused by his frequent cocaine and alcohol binges, counsel fell asleep during the trial, including during the prosecution’s examination of critical witnesses. It should come as no surprise that anyone represented by a drug-addicted, alcoholic, and sleeping lawyer would be convicted. But it should come as a shock that such a conviction would be upheld on appeal. The appellate court didn’t give a shit about this blatant denial of due process. The appellate court didn’t give a shit about the drugs, the booze, and the frequent naps during the trial. To the court, this was harmless error. If that is harmless, it’s difficult to know what would be harmful.
The second example is real. It is raw. It is authentic.
Of course, being a little unprofessional doesn’t give you a license to be a jerk. Never be disrespectful or attack personally your adversary or the lower court. And keep the four-letter words to a minimum. But there are instances in which your passion and authenticity can be best expressed by dispensing with the formalities and being real.
4. Reframe your opponent’s argument
Don’t allow your opponents to frame issues on their terms. Reframe the issues to support your argument and reinforce the commonly accepted values on which they are based. For example, consider the above example regarding ineffective assistance of counsel and how the hypothetical attorney in Example 2 reframes the argument to appeal to basic and commonly accepted values.
The state acknowledges that defense counsel had a drug and alcohol problem and that defense counsel slept during portions of the trial. But that is not the relevant inquiry. The question is whether defense counsel’s performance prejudiced the defendant, such that the outcome of the trial would have been different had counsel performed differently. The answer to that question is no. The conviction should be affirmed.
The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel snorted cocaine during the trial. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel is an alcoholic. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel falls asleep during a trial and renders the defendant helpless in the legal process. The state is asking this court to hold that attorneys who are addicted to cocaine and alcohol, and who decide to sleep rather than aggressively advocate for their clients, satisfies the Sixth Amendment’s promise of effective assistance of counsel. To accept the state’s argument is to say that the Sixth Amendment has no meaning whatsoever.
Yikes. I wouldn’t want to be a justice on the New Jersey Supreme Court in such a case.
5. Explain with specificity why your position is good policy and will lead to fair and just results
It’s not sufficient that your proposed rule or policy is workable based on the facts of a specific case. The most persuasive arguments demonstrate that such a rule or policy would be workable, fair, and just in future cases and in a variety of contexts.
To achieve this objective, you should do three things. First, make sure that your position is supported by facts and empirical data. Second, acknowledge weaknesses in your position and explain how your rule or proposal addresses such weaknesses and leads to just results. Third, to demonstrate its efficacy and fairness, give hypothetical examples explaining how your rule or proposal would be applied in other contexts.
After all, facts don’t always win arguments.
The law doesn’t always win arguments.
Be confident. Be authentic.
Saturday, June 26, 2021
Often, students and practitioners ask for me book recommendations on appellate advocacy. Like many, I am a fan of Bryan Garner’s works and of anything by Judge Ruggero J. Aldisert. Recently, Professors Daniel P. Selmi and Rebecca A. Delfino, colleagues of mine when I was teaching at Loyola Law School Los Angeles, published the Second Edition of Principles of Appellate Advocacy with Wolters Kluwer (Aspen). The book is aimed at law students, but its straightforward organization and direct examples will help students and newer practitioners alike. I will definitely be recommending Principles of Appellate Advocacy in the future.
Delfino explained she found the first edition of the book when she needed a legal writing and appellate advocacy text that would not “overwhelm students with a disparate mixture of rules, arcane procedural requirements, and multiple writing instructions.” She also: “didn’t want to use a dense case book, a workbook of exercises, or seminar materials full of platitudes or hacks geared to practitioners. Instead, I wanted something practical, concise, and accessible written by someone who knows the law student audience.” Delfino found Selmi’s first edition easily manageable for students, with instructions “laser-focused on appellate brief-writing.”
In the second edition, Selmi and Delfino, now a co-author, have retained the comfortable length and approachability of the book. The second edition is only 166 pages before the samples and problems. While full of excellent concrete examples, the text flows easily and invites students to stay engaged with clear and direct writing. Just like a good brief, the book has a very helpful Table of Contents and keeps the focus on explaining why each proposed writing technique matters.
Delfino explained the main changes to the second edition came from student and colleague feedback. Selmi and Delfino added more information on standards of review, appealable error, and preservation of issues for appeal. They also included new exercises to stress the “rules for writing discussed in the text and [provide] practice revision and editing techniques.” Finally, they added a helpful video on oral argument and a sample syllabus.
I especially liked Chapter 10, “Basic Writing and Other Mechanics.” As the authors aptly explain, good writing “is not a matter of ‘style’” but of following key principles. Principles of Appellate Advocacy provides ten areas of focus for the best legal writing, such as manageable sentence and paragraph length and effective topic sentences. The book also has great examples, some in understandable diagram form, of the dreaded passive voice and nominalizations my students use sometimes.
As the authors note in the Introduction, “Appellate brief writing is a time-intensive exercise” and a “course in appellate advocacy undoubtedly will take more of students’ time than they estimate.” But the new edition of Principles of Appellate Advocacy will help students and newer practitioners get to winning briefs more quickly and easily.
Sunday, June 13, 2021
Moot Court is an important class in law school because it teaches students the skills necessary to be effective appellate advocates. Below are five rules that moot court students – and practicing appellate advocates – should follow when arguing before an appellate court.
1. Start strong
First, begin with a powerful opening sentence that captures the court’s attention. Of course, don’t be too general or overly dramatic. Instead, ask yourself how you would describe in one sentence why you should win. The answer should be your opening sentence.
Second, use the Rule of Three. After your opening sentence, immediately and concisely provide the court with three reasons supporting the outcome you seek. Be sure that they are clearly delineated and supported by the record and relevant law.
Third, tell the court what remedy that you are seeking and the rule you would like the court to adopt. The court needs to know what you want and why giving you what you want would result in a workable rule that can be applied fairly and consistently to future cases. Put simply, the beginning of your argument is a roadmap for the court to follow that will lead to a ruling in your favor.
Consider the following examples by attorneys who are appealing a district court’s decision to dismiss via summary judgment their client’s defamation case on the ground that the alleged defamatory statements were constitutionally protected opinion:
May it please the court. The First Amendment is sacrosanct in our society. Ensuring a robust marketplace of ideas is essential to a democratic society. To that end, unpopular ideas are protected from government censure and even the most distasteful comments warrant First Amendment protection. But sometimes, people cross the line and say things that neither the First Amendment nor common decency should countenance. The founders did not intend for any speech, no matter how harmful, to receive First Amendment protection, as the United States Supreme Court has recognized in cases like Miller v. California and Brandenburg v. Ohio. This is one of those cases. The harm caused to my client by the statements made against him is actionable under federal law.
What nonsense. If I was the client and listened to this opening, I would cringe and possibly run out of the courtroom. Now consider this example:
May it please the court. The appellee’s statement implied underlying false facts, was defamatory as a matter of law, and caused severe reputational harm. First, the statement that my client was “a disgusting person and attorney who would lie to any client to make money,” implied that my client was an incompetent and unethical lawyer. Under United States Supreme Court jurisprudence, these statements are actionable and defamatory. Second, the statement is verifiably false. As demonstrated in the over fifty reviews by former clients, my client's inclusion in the Best Lawyers in America for the past ten years, and his selection as the Lawyer of the Year last year, the statement is untrue. Third, the statement has subjected my client to harm and ridicule in the community. Several clients have fired him. Many have sent him offensive emails. He has been suspended from the State Ethics Committee on which he served. For these reasons, we respectfully request that this court overturn the district court’s grant of summary judgment by applying the well-settled principle that opinions implying underlying facts can – and often are – defamatory.
The difference should be obvious.
2. Answer the judges’ questions.
Perhaps the most important part of an oral argument at the appellate level is the judges’ questions. Those questions provide insight into, for example, concerns the judges may have about one or more of your arguments or the rule that you would like them to adopt. They are also an opportunity – indeed the best opportunity – to make your case to the judges.
To do so, you should follow two basic rules. First, answer the questions directly. Do not try to avoid them or give answers that may sound persuasive but that aren't responsive. You are a lawyer, not a politician. If you give evasive answers, you will lose credibility with the judges. You will show that you lack effective responses to the judges' concerns. And that will undermine the strength of your argument. Thus, be sure to answer the questions directly. Those answers may require you to acknowledge weaknesses in your case, such as unfavorable facts or law. Who cares. The best attorneys concede these points and explain why they do not affect the outcome they seek.
Second, the best attorneys pivot seamlessly from the question back to their argument and thus continue the argument with excellent organization and flow. Consider the following examples:
Judge: Counselor, as bad as this statement may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: Well, the real issue here is about the harm. My client’s reputation has been severely and, perhaps, irreparably harmed by this statement. And the record amply supports that fact. So, the technical distinction between pure opinions and opinions implying underlying facts is really just an argument about semantics.
Judge: Let me try this one more time. What criteria would you use to distinguish pure opinions from opinions implying underlying facts?
Attorney: With all due respect your honor, that is not the question in this case. The question is whether my client was defamed. The answer is yes.
That is simply terrible. Now consider this example.
Judge: Counselor, as bad as these statements may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: The distinction is verifiability. Pure opinions cannot be proven to be factually false. For example, if a person says, “the New York Yankees are a bad team,” that would be a pure opinion because what one considers ‘bad’ is subjective. But if a person said, “The New York Yankees are only a good team because of the stuff their players take to enhance their performance,” that would be an opinion that implies underlying facts because it can be proven that the players do not take performance-enhancing substances. In this case, the appellee did not simply say that my client was a ‘disgusting person.’ He said that he was a ‘disgusting person and attorney who would lie to any client to make money.' We can verify, through affidavits and sworn testimony, that he never lied to a single client about any matter pertaining directly or indirectly to their representation. And that is why the rule we ask this court to adopt is neither novel nor unworkable. We simply ask that you apply well-settled precedent stating that opinions implying underlying false facts can be defamatory. Indeed, in this case, they most certainly were defamatory.
Again, the difference should be obvious.
3. Have a conversation with the court
During an oral argument, you should be yourself and have a conversation, not a confrontation, with the court. The judges are not your enemies. They are simply trying to reach the fairest outcome that is consistent with the law and justified by the facts. Thus, you should be friendly and respectful, realizing that, as an advocate and as an officer of the court, your responsibility is to help the judges reach the best result while remaining faithful to your client’s objectives.
The best way to do this is to provide the court with a practical and workable legal rule that can be applied fairly and consistently to future cases. Remember that appellate judges are not focused exclusively or even primarily on your client. They are focused on whether the outcome they reach and the rule they adopt will provide workable and just in future cases, both as a matter of law and policy. For this reason, the best appellate lawyers advocate fiercely on their clients' behalf but also propose legal rules that the court believes will provide clarity, fairness, consistency, and predictability in future cases.
4. Don’t screw up on the basic aspects of appellate practice
Never make the basic mistakes, namely, the ‘red flag’ errors that undermine your credibility and your case. For example:
- Know the record
- Know the law (and please make sure your legal authority remains valid law)
- Know the standard of review
- Write an outstanding – and concise – appellate brief and remember that the brief is more important than the oral argument
- Never be disrespectful to the lower or appellate court, or the adversary
- Follow the federal or state rules, and the local rules
- Don’t make weak arguments
- Cite cases and other authority
- Know the difference between binding and persuasive authority
- Have realistic expectations and communicate those expectations to your client
- Don’t use notes at oral argument
- Be honest
- Don’t be a jerk
This list is certainly not exhaustive. But if you violate one of these rules, your chances of winning will be compromised – as will your reputation.
5. Have a short list of ‘non-negotiable’ legal arguments
It’s difficult to predict what will happen in an oral argument. Some appellate panels ask many questions, which is known as a ‘hot’ bench. Some ask few questions. Sometimes, the judges raise issues that you don't expect or ask questions that you have difficulty answering. Regardless of what happens at an oral argument, you should always have a list in your mind of the arguments that are so essential that you must communicate them to the court, no matter what the direction or focus of the argument.
And remember, there are some things that cannot be taught or that require significant practice. Those are a lawyer's: (1) charisma; (2) personality; and (3) persuasiveness. The best appellate advocates have all three.