PREPARING FOR ORAL ARGUMENT THE VIRGINIA WAY

(Posted September 15, 2017) If you’ve seen this week’s edition of Virginia Lawyers Weekly, you’ve no doubt noticed the article entitled, “10 Steps for Preparing for an Appellate Argument.” That’s because it’s on page 1, above the fold, in the paper’s prime real estate. You can’t miss it.

But for the most part, you wouldn’t be harmed by missing it. Some of the basic advice is well worth heeding, but some is less useful and at least two items are utterly useless here in Virginia.

The author of the article is a Massachusetts lawyer. It’s possible that this is the way they do it up in the Bay State, but you can do better here in Virginia.

What the article gets right

I’ll give the author this much: She does include the #1 must-do item in preparing for an appellate argument, although she buries it as her entry #8, “Anticipate the hardest questions.” When I prepare for an argument, I spend one unit of time preparing a speech and about four units anticipating the toughest, most difficult questions I might get. I then prepare concise answers to each, including cites to pages in the record or caselaw, and I put those on a sheet in my argument notebook. When I get one of those questions at the lectern, I can turn to that page, refresh my memory if necessary, and deliver a polished answer instead of either incoherent ramblings or stunned silence.

Speaking of a notebook, the author does refer to that obliquely, late in segment #5, which is titled, “Read the key cases and have them at your fingertips.” I always use a three-ring binder for arguments, and one of my most important pre-argument tasks is selecting what will go into it. I use ruthless triage to ensure that I don’t bring too much with me; that’s cumbersome and a form of defensive lawyering. My estimable legal assistant then prepares tabs for easy reference and inserts everything I’ve chosen into a binder, so in court I can turn instantly to any document I want. A typical binder will have tabs something like this:

Our brief

Their brief

Reply

Complaint

Demurrer order

Final order

Smith v. Jones

Brown v. Day

Contract

Some of my technophile pals will use a laptop or tablet at the lectern, and that’s fine; I won’t argue with them. (The screen on my binder has never frozen; nor has it ever run low on battery life. But I digress.) If you’re one of the technophiles, that’s good; just know that the VLW article includes no information about how to organize your e-notes.

What the article gets sort-of right

There are some good tips that don’t break any new ground or provide any special insight into the appellate argument process, but they’re a decent reminder of basics. For example, entry #4 is “Update your research.” For you, my loyal readers, that’s usually less of a concern because you always stay up-to-date on new appellate decisions the easy way, by reading this website. But no lawyer wants to arrive at the lectern and be asked about an unknown decision that came down a month earlier.

Item #7 is “Prepare a list of ‘must-make points.’” The author of the article begins to justify this sensible advice by writing, “The reality is that, in most cases, you will spend most of your allotted time answering questions from the judges.” In my experience, that’s just not true. You should expect questions, of course; and experienced appellate lawyers are silently begging to be interrupted from the moment they arrive at the lectern. But in most appellate arguments I spend far more time giving a speech than in answering questions. (There are, of course, exceptions, arguments to a particularly hot bench where the questions fly around like swallows. But that’s definitely not “most cases.”)

It is a good idea, of course, to identify your key points; that’s basic argument preparation. But the real skill of an appellate advocate – one the author doesn’t mention – is responding to a question and weaving that answer into the flow of the argument, so that it comes across as seamless. A journeyman appellate advocate gets all the points out; a master creates an oral tapestry.

The article devotes a single sentence, buried at the bottom of point #8, to a topic that’s dear to many appellate lawyers: moot court. About 85% of appellate lawyers use moot courts as part of their preparation. That 85% is probably convinced that not mooting an appeal is malpractice. Guess what? I’m part of the other 15%. I never participate in moot courts, because of the way I was trained as a speaker. Unlike the 85%, I don’t insist that others have to do it my way; in fact, I believe that for most advocates, it’s a good idea to moot it. In any event, whether you like mooting or not, a serious article on preparing for appellate argument should include more than a drive-by mention of this tool.

The article concludes with a point that’s purloined directly from John W. Davis’s now-legendary 1940 address to the New York City bar association: “Put yourself in the judges’ shoes.” Davis phrased it this way: “Change places (in your imagination of course) with the Court.” This is a fundamental that belongs in Public Speaking 101; any speaker should consider the listener’s perspective, and craft something accordingly.

What the article gets (ahem) less than right

If you’re appearing in an appellate court here in Virginia – either the Supreme Court or Court of Appeals of Virginia or the Fourth Circuit – then points #2 and 3 will be useless to you: “2. Research the panel. 3. Read your judges’ other opinions.” Elsewhere in the Nation’s appellate landscape, courts announce in advance which jurists will be assigned to a specific case, so if you really want to hone in on a particular judge, you might be able to do that.

But none of our three courts identify panel members in advance. Whether it’s a writ panel in the SCV or a three-judge panel in the CAV or the Fourth, you find out who’s on your panel when you walk into the courthouse and check in, just before your argument. That means that if you really want to bone up in advance on the jurisprudential tendencies of each potential member of your panel, you have to research seven members on the Supreme Court (leaving aside for now the senior justices), eleven in the CAV, and 15 in the Fourth. Good luck with that.

The author of the article fails to include an important caveat, in case you realize that a member of your panel wrote a seminal decision that helps you: Don’t mention that fact in your argument. That is, do not say from the lectern, “And Justice Jones, I know you’re well aware of this doctrine, because you wrote the Johnson opinion.” I cringe even to type this, because I know that approach doesn’t go over well. Just cite the case and trust Justice Jones to recall it.

Instead of trying to divine who’ll be on your panel, it’s better by far to familiarize yourself with the relevant caselaw on your specific appellate issues, paying particular attention to the more recent ones. If you’re relying on an obscure decision from the Nineteenth Century, you’ll have to do more work, and waste more time at the lectern, than if you’re citing something from last year.

In my mind, the article’s most egregious sin of omission is that it tells the reader nothing about how to organize the argument that he’s preparing. Isn’t that what “preparation” is supposed to be? In this regard, oral argument differs from briefwriting. If you have multiple issues, modern appellate-advocacy theory is to put your most interesting issue first in your brief. The task of a brief, from the standpoint of persuasion, is to grab the reader’s attention quickly and get that reader leaning in your direction, ideally from page 1 on.

In contrast, with oral argument it’s better to focus first on the most vital issue in the case. But you can usually do both at once. In some instances, we can begin the argument forcefully with something like this (after we introduce ourselves, of course; an oral argument essential that the article again fails to mention):

While there are a number of sub-issues in the briefs, in truth this case will turn on how you rule on the admissibility of Exhibit 2. If you rule that it was inadmissible, then I’m going to lose this appeal. But I have no fear on that point, because the trial court got this right. Here’s why …

A lawyer who begins an argument this way has metaphorically grabbed the court by the lapels. She has seized each jurist’s full attention after only fifteen seconds of argument, particularly with the startling admission, delivered confidently, “If you do this, then I’m going to lose.” She’s avoided a long windup in favor of going straight to the narrow, decisive issue.

Trust me on this: They love that. Flowery oratory is part of the appellate tradition, but guess what? Daniel Webster is dead! So are the days of long orations; nowadays you have to get right to the point. (Daniel Webster couldn’t clear his throat in the 15 minutes that advocates get in merits appeals these days.) You may as well get to that key point forcefully.

The article also omits one vital element of preparation: How much argument should you prepare? That is, if you were to get no questions, how much of your allotted time will you take? If you answered, “All of it, of course,” you’re making a mistake. You probably will get some questions, and if you get several minutes’ worth, that time bumps aside the points you had planned to end with. A good rule of thumb is to prepare argument for somewhere around 70-75% of the allotted time – so, for a 15-minute argument, between ten and eleven minutes – and allow yourself a degree of comfort. (If you reach the end and you still have time left, then for God’s sake, take John W. Davis’s closing advice: “Sit down.” Thou shalt not wing it.)

As I noted, the likelihood is that you’ll get questions. If you don’t, that’s often a bad sign, especially at the petition stage in state court. No experienced appellate advocate wants to deliver what I call the Easter Island speech to a solemn, mute audience. We want to know what’s on the jurists’ minds so we can address those issues, preferably with our carefully prepared answers. In case you’re wondering, Davis agreed: “Rejoice when the Court asks questions.”

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I have perhaps been unfair to the author of the VLW article by pointing out that she’s from Massachusetts and by titling this essay the way I did. I’m confident that she’s quite capable, and good appellate advocacy really isn’t much different from state to state. My point here is that neither that article nor this essay will make you an expert on appellate advocacy. I’ve seen plenty of arguments given by good lawyers who nevertheless had no more business stepping up to an appellate lectern than I would have stepping into the octagon.

If you want to cultivate an appellate career, great; there’s always more room in the appellate bar, which is a wonderfully collegial group. Just get some real training and don’t rely on an article in a journal to get you up to speed.