By L. Steven Emmert,
This is the second in a series of interviews with the great minds of history, with an eye toward the lessons they offer for the modern appellate advocate. The first in the series, entitled, “Sun Tzu: The Art of Appellate War,” may be accessed here .
Even for those who have not studied classical history, the name of Marcus Tullius Cicero will ring familiar. Regarded as the greatest of Roman orators, he served the state in a variety of magistracies, culminating with a term as consul, the highest office in the
But it was as a lawyer and an orator that
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Thank you for taking the time to speak with us.
As you can imagine, since Im dead I have plenty of time on my hands. Im happy to oblige you.
Umsorry to raise a sore subject. Our readers are interested in appellate advocacy in the modern world. What kind of insight do you have in that field?
My job was to persuade judges to decide a question the way my client wanted it to come out. The job of an appellate lawyer is to persuade appellate judges to decide a question the way the lawyers client wants it to come out. In truth, your legal system has its earliest roots in Roman law, since that ultimately is where the English got their legal concepts. Accordingly, I think I have plenty to say on your topic.
You have evidently been paying attention to modern legal practice.
You have no idea. Youd be surprised where Internet access extends these days.
You can access the Internet?
Absolutely. One of my favorite pastimes is scanning the transcripts of oral arguments in the Supreme Court of the
Those are available online?
Sure; here is a hyperlink to the Courts Web page. Transcripts are just a click away.
What about other appellate courts? The focus of our attention is on
Not yet. In reality, transcripts are useful, but they are no substitute for seeing the arguments live. Thats where you can get a real feel for the interchange between jurist and lawyer.
Well, what about that? Will the courts offer televised oral arguments, either live or taped?
That is an excellent question, for viewing an actual oral argument is enormously useful as a training tool. There has been talk of videotaping Supreme Court arguments in
How about our state courts? Will we see cameras in the Supreme Court of
I see. I shouldnt hold my breath waiting for that one.
Exactly. But if a practitioner wants to see some arguments, its as easy as a trip to
Is it really worth going to
Absolutely. Would a lawyer who has never watched a trial feel comfortable about going into a trial court herself for her first case? Your readers should consider this an essential part of their preparation for their own arguments, in any appellate court. You have read some of the transcripts, such as they are, of my legal arguments, right?
Well, yes, but I cant really say that I have a good feel for exactly how those cases were tried.
Thats the point; in order to understand it, you need to be able to see the dynamics of the courtroom, not just read a cold transcript. By the way, if your readers want the experience of an appellate oral argument but cant find the time for a trip to
How about the Fourth Circuit?
Generally that court meets in Richmond , but they periodically take the show on the road. Lawyers arguing cases in the Fourth Circuit may get a notice to come to court in, say,
Lets turn to the topic of preparing what to say in an oral argument. I assume that in order to ensure that you get everything in, its best to read from a script, right?
Why are you looking at me like that?
Im wondering why you would want to inflict such a punishment on the very judges who are going to decide your case. Of course, thats better than the ultimate insult, simply reading your brief to the court. Some courtrooms have a hidden trapdoor at the lectern for lawyers like that.
Youre not serious.
No, Im not serious. But youd have plenty of appellate judges who would wish for such a device if lawyers tried to read their briefs during oral argument.
Interesting? I thought the goal was to make the arguments logically compelling, not interesting.
Go up to one of your appellate jurists sometime at a Bar function just sneak up behind one if you have to and youll see that he or she is made of flesh and blood, just like you. All of the flesh-and-blood humans Ive ever met prefer that any presentation be interesting. Now, if you ever get to the point where your appellate decisions are made by some of those supercomputers your society has so cleverly created, then you can abandon an interesting approach. But until that happens, effective oral advocacy will have to be interesting to listen to. Thats another reason why lawyers will never be rendered obsolete by technology, like, say, Morse Code telegraphers.
Then what is the best method of making something interesting, assuming you cant read a script? How about memorizing a speech?
Thats only marginally better. At least you can maintain eye contact. But then as soon as you get a question from the court, youre off your script, youve lost your rhythm, and its virtually impossible to recover. The best approach is something of a synthesis of a prepared script and extemporaneous speaking.
How does a lawyer do that?
First and foremost, it requires a thorough knowledge of the record, the arguments, and the caselaw. If a lawyer doesnt have that, hes better off waiving oral argument.
Youre being facetious again, right?
No, Im quite serious. It is better to leave the decision to a well-crafted brief than it is to arrive for oral argument less than fully prepared.
But wont the court regard your waiving oral argument to be a sign of weakness?
You have a maxim in your modern society that goes something like, “Its better to keep your mouth shut and be thought a fool than to open it and remove all doubt.” You really are better off not presenting a poor oral argument.
Tell me more about the blended extemporaneous approach you mentioned earlier.
Every good speech requires some preparation; it is virtually impossible to simply stand and deliver a sterling speech while composing it from scratch in your head. But some sense of freshness is essential if one is to make a speech interesting, so going to the opposite extreme is not effective, either. The best way to find the optimally persuasive middle ground is to prepare and practice in advance certain phrases or passages of ones speech. Perhaps the greatest orator of the Twentieth Century, Winston Churchill, was frequently acclaimed for his witty, off-the-cuff ripostes. In truth, he often worked for hours planning, practicing, and polishing those epigrams. Appellate lawyers can do something of the same thing by planning certain themes they will use in their presentations, so they do not have to rely actively on a script when they are at the lectern.
Did you apply that technique in making your own speeches?
Of course. My most famous speech, at least through the imperfect lens of your era, is ” Against Catiline .” When I delivered that speech in the Senate, I had that very morning evaded an attempt on my life by two of Catilines henchmen. I only learned an hour or so in advance that Catiline himself was going to be in the Senate that day, ostensibly to defend himself, so I had very little time to compose a formal speech. But I had a number of well-practiced phrases and themes at the ready, and they helped me to make the greatest speech of my era, seemingly without preparation.
I have to confess, the idea of rehearsing impromptu comments is a bit incongruous.
But its essential to effective speechmaking at this level. And while I do not encourage your readers to mislead the audience, that is not to say that it has never happened. There is a story about the greatest Supreme Court advocate of the Nineteenth Century, William Pinkney of
And the lesson of that is . . .
It is best to be able to deliver something akin to oratory (a carefully prepared and rehearsed script) in a manner that suggests that it is in fact impromptu (no preparation). The midpoint of oratory and impromptu speaking is extemporaneous speech, where with practice, one can make a dynamic speech that appears fully polished. The goal is to make the speech fresh and alive.
With that in mind, whats your view of how much to rehearse a speech to an appellate court?
I believe it is a matter of ones personal style. Some lawyers feel more comfortable if they have carefully rehearsed their entire presentation, perhaps even in front of a “mock court” of colleagues who play the part of the appellate panel. Other lawyers feel that once they have delivered a speech, its dead. Those lawyers may practice snippets of the speech a phrase here, even a gesture there but will not run all the way through it before they step to the lectern.
That sounds very risky.
It is, to those lawyers whose personal style tends more toward oratory. Those lawyers need the security of a meticulously planned speech, and theres nothing wrong with that; its what works for them. For the other kind of lawyer, whose style is more extemporaneous, rehearsing a speech in toto is simply a way of robbing it of its vitality, of even the air of spontaneity. Those are qualities that can truly make an oral argument stand out.
How do you suggest that lawyers deal with questions from an appellate bench?
I suggest that they listen to the questions and then answer them.
Oh, come on, now.
I am in earnest. Lets take that answer one aspect at a time. First, one should listen to the question. That means never attempting to talk over the questioner. Believe it or not, sometimes lawyers engage in this form of occupational self-immolation. The first rule of etiquette in an appellate courtroom is, When the judges mouth opens, you should close yours immediately. Listening also means paying attention to the question in detail, not mentally preparing your next move or thinking about your afternoon tee time. Next, the lawyer should answer the question. Not its second cousin and not some other topic you want to address; you answer the question that has been asked. If you need to explain your answer, thats fine; just make sure the answer comes first and the explanation comes next. Doing it the other way around makes you look fidgety, and leads to the conclusion that youre making an excuse in advance for the answer that is to come. Here is a point that is often missed it is perfectly acceptable for the lawyer to pause for a few seconds before answering. That time can often give you the moment it takes to compose your response well, instead of blurting out the first thing that comes to mind in order to avoid a moment of awkward silence when everyone in the room is staring at you. That moment isnt awkward to the bench; it means that you are actually thinking about the proper answer to the courts question, which the jurists know is more difficult to answer than, “Whats your middle name, counsel?”
Lets move to another topic. How to you pay appropriate respect to the court without seeming to be a smarmy sycophant?
Yes, you do still have a supply of those, dont you? They were around in my day, and theyll be there with the cockroaches and the crabgrass when all other life forms on Earth have died out. The best way to address this is more of a mindset than a specific set of to-do items. If you go into the court feeling like youre an inferior being, you will naturally tend toward getting sickeningly sweet with your expressions of admiration for the brilliance of the bench. Obviously, you cant go to the opposite extreme and assume that your intellect is superior to the court’s, or you will quickly have a grave problem of an entirely different scope. The best approach is to regard the oral argument experience as an intellectual discussion among friends, though not with quite the informality you would display with your close friends. You must neither talk up nor talk down to the court.
Is it acceptable to thank the court for its time?
If you want, its fine to do that once. More than once, and you start to sound like a fawning lackey.
How about calling the judges by their names? Not their given names of course, but what do you think about addressing a comment to “Justice Wilhoit?”
For the typical person, the sweetest sound on Earth is the sound of his own name, but there are dangers to doing this with appellate jurists. For one thing, unless you are dead certain of how Justice Wilhoit pronounces her name, you run the risk of mispronouncing it. A mispronounced name is not the sweetest sound on any planet. Second, unless the court has clearly legible name plates in front of each jurist, you run the risk of saying “Justice Wilhoit” to a person who is in fact Justice Dodson. Now you have made TWO enemies. The third problem is that if it seems contriv