Effective Appellate Advocacy part II


Onward to the oral argument.  The panel members were Judge Ambro (CTA3), Judge Kavanaugh (CTADC) and Judge Gribbon Motz (CTA4), with Patricia Millett the practitioner participant .  Millet, from Akin Gump, was recently written up in the National Law Journal for being the women with the most arguments in front of the Supreme Court.

Again I will skip the usual suspect points and focus on tips I found useful: 

  • There was a lot of discussion about what to bring up to the podium.  Some said, very astutely, that it is impossible to read anything up there (not that you want to read anything to the court – unless you want to put them to sleep; but given what's going on, you can't stand there and read something to yourself, either).  Instead, take up one sheet of paper with your few big points in a few words IN REALLY BIG FONT, as a prompter.
  • Oral argument, Judge Ambro said, is defensive – your goal is to ferret out what the panel doesn't buy in your briefs and change their minds. Judge Kavanaugh noted that, just like you can't avoid your weak points in the brief, you can't in the oral argument – and you have to be able to respond in a snappier way to questions on those weak areas without the time to finesse.  So spend a lot of time preparing snappy responses to the potential bad questions.
  • Judge Ambro noted that there are a lot of reasons for oral argument from the judges' perspective – to make sure they understand the facts, to test a new theory, even to chide counsel, so keep that in mind. 
  • Going back to the context point noted in the previous entry, one speaker noted that knowing your theory cold and where it fits into the legal framework is critical to understanding what you can concede and what you cannot.
  • Never, never tell the Court, when they ask some wacky hypothetical, "That's not this case."  News flash – they know that.  Answer it, and answer their yes/no questions with yes or no, but be ready to argue in the alternative, "yes, our position does extend even to that wacky hypothetical, but alternatively you don't have to go there because X." 
  • If the panel has eviscerated the other side before your eyes, when you stand up, do not jump on the bandwagon.  This could be seen as a challenge for them to eviscerate you, too.   
  • Don't pander by citing a decision by a judge's opinion to that judge.  Do try to get them involved – so, for example, Judge Motz said, if it's a record based argument, have the appendix with you and say, "let's turn to page X" – involve them.  (And yes, it's not a bad idea to acknowledge when the court has a good idea) 
  • The need for a theme and news bite articulations applies to the argument, too.  Millet, who noted that she averages 8-10 days prep (isn't it a lovely,pricey world in the Supreme Court sandbox), said that she prepares around five lines that she will try to include in her argument if she gets the opportunity to do so.  With a very hot bench like the Supremes, she tries to open an answer by saying something like, "there are three responses to that question" because sometimes when she's immediately interrupted, another judge will later take pity on her and prompt her to return to her three points.

In sum, attendance at this seminar was not a bad use of a morning.  And it took place in the court room of the Federal Circuit, so I got to visit that court for the first time, which is right across the park from the White House and has a lovely court yard.  And there were doughnuts.  What more can you ask for?