Cicero On Oral Argument
By L. Steven Emmert, ABA Appellate Issues Vol. 6 Is. 1, December 11, 2006
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 Roman Republic , in 63 BCE. His life and career spanned a period of monumental changes in Roman politics and government, including the unprecedented appointment of Gaius Julius Caesar as dictator for life, effectively ending the Republic that had endured for nearly five centuries. Cicero was never far from the swirl of Roman public life, and had a hand in a number of political and legal reforms in the middle of the first century BCE.
But it was as a lawyer and an orator that Cicero found his greatest fame. His arguments in the law courts earned him great respect and at least some fortune. His speech against the conspiracy led by Lucius Sergius Catilina (known to modern readers as Catiline), and his subsequent exposure of that plot, earned him the title Pater Patriae (Father of the Country) eighteen centuries before George Washington claimed a similar honor here in America .
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Thank you for taking the time to speak with us.
As you can imagine, since I’m dead I have plenty of time on my hands. I’m happy to oblige you.
Um—sorry 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 lawyer’s 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. You’d 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 United States .
Those are available online?
Sure; here is a hyperlink to the Court’s Web page. Transcripts are just a click away.
What about other appellate courts? The focus of our attention is on Virginia courts. Do any of those offer online access to transcripts?
Not yet. In reality, transcripts are useful, but they are no substitute for seeing the arguments live. That’s 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 Washington , and some federal courts of appeals are looking into it.
How about our state courts? Will we see cameras in the Supreme Court of Virginia any time soon?
[ Cicero smiles.] You may want to try The Weather Channel’s Web site. Try checking the forecast for Hell, and if there is a major cold front moving in, then who knows?
I see. I shouldn’t hold my breath waiting for that one.
Exactly. But if a practitioner wants to see some arguments, it’s as easy as a trip to Richmond . Whenever the court is in session, either in writ panels or on merits review, the arguments are open to the public. It may be hard to get in to the two small panel rooms, simply because there’s not a lot of seating. But you can almost always find a place to sit in the main courtroom. While you’re there, you’ll have a good opportunity to see how oral arguments unfold.
Is it really worth going to Richmond to see some oral arguments?
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 can’t really say that I have a good feel for exactly how those cases were tried.
That’s 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 can’t find the time for a trip to Richmond , they can attend arguments of the Court of Appeals of Virginia. In addition to Richmond , that court meets in Salem , Alexandria , and Chesapeake .
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, Baltimore , Maryland or Charleston , South Carolina . Recently, a panel of the court met in Winston-Salem , North Carolina . Your Virginia lawyers will find that Richmond is probably their best bet.
Let’s 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, it’s best to read from a script, right?
Why are you looking at me like that?
I’m wondering why you would want to inflict such a punishment on the very judges who are going to decide your case. Of course, that’s 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.
You’re not serious.
No, I’m not serious. But you’d have plenty of appellate judges who would wish for such a device if lawyers tried to read their briefs during oral argument. Reading from a prepared script is only marginally better; it is impossible to maintain eye contact with the court while you’re reading, and that makes the argument far less interesting.
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 you’ll see that he or she is made of flesh and blood, just like you. All of the flesh-and-blood humans I’ve 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. That’s 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 can’t read a script? How about memorizing a speech?
That’s only marginally better. At least you can maintain eye contact. But then as soon as you get a question from the court, you’re off your script, you’ve lost your rhythm, and it’s 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 doesn’t have that, he’s better off waiving oral argument.
You’re being facetious again, right?
No, I’m 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 won’t 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, “It’s 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 one’s 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 Catiline’s 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 it’s 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 Maryland , that illustrates this. One of Pinkney’s friends overheard him one day walking through a forest, carefully rehearsing an argument. He would go over various phrases again and again, with slight modifications in inflection and emphasis, all in an effort to find the perfect turn of phrase and the perfect delivery. He was, in fact, preparing meticulously for an oral argument the next day, but in a place where no one could know about the preparation. The next morning, Pinkney was intentionally late for court; he arrived in a hurry, not dressed in his customary elegant manner. He explained that the date of the argument had escaped his memory, and while he had no prepared argument, he resolved to do the best he could without preparation. He then delivered, seemingly on a moment’s notice, a brilliant argument with perfect delivery. The audience, with the exception of Pinkney’s amused friend, was completely taken in by the act.
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, what’s your view of how much to rehearse a speech to an appellate court?
I believe it is a matter of one’s 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, it’s 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 there’s nothing wrong with that; it’s 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. Let’s 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 judge’s 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, that’s 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 you’re 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 isn’t awkward to the bench; it means that you are actually thinking about the proper answer to the court’s question, which the jurists know is more difficult to answer than, “What’s your middle name, counsel?”
Let’s 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, don’t you? They were around in my day, and they’ll 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 you’re an inferior being, you will naturally tend toward getting sickeningly sweet with your expressions of admiration for the brilliance of the bench. Obviously, you can’t 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, it’s 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 contrived, it may appear to everyone on the bench that you are just sucking up, which is not the impression you want to make.
I understand that many lawyers, in the heat of argument, momentarily cannot remember when to refer to an appellate jurist as “Judge” or “Justice.”
The general rule, though by no means universal, is that the highest court within a given court system is composed of justices, while all lower benches contain judges. For those who may have trouble remembering even this rule, it is never incorrect to address an appellate jurist as “Your Honor,” regardless of the level of the court.
Is there one overarching tidbit of advice you can give to the appellate lawyer?
There are several things that should be perfectly obvious – never misrepresent the record; always disclose controlling adverse authority; never make a frivolous argument. Those things are keyed toward protecting the lawyer’s personal credibility with the court, the most valuable asset any lawyer can have, at any level. I assume you’re not talking about something quite so fundamental and obvious as that. My answer to your question is that the lawyer who is approaching the lectern to give an oral argument should relax and enjoy the experience.
WHAT?! This is supposed to be a grueling ordeal!
If you’re that averse to pressure, you can always find a job as an actuary or a stock clerk.
But this isn’t about ordinary aversion to pressure. Oral argument is specifically designed to be a crucible in which legal theories are tested under intense fire. How could anyone possibly enjoy that? And how can anyone relax when they have to go through that?
You have to recognize, of course, that you’re not going to be able to relax the first time you come to an appellate court. But experience will soon demystify things, and the second and third trips will bring increasing familiarity with the court and the process. As for relaxation, perhaps the best example I can give to you is from your modern sports of golf and baseball.
Sun Tzu also gave me a baseball analogy. I assume the sport is popular where you two are.
Just wait’ll you see how the 2008 World Series comes out. Unbelievable. Anyway, if you compare the grip pressures used by professional golfers on their clubs and Major League baseball players on their bats, with the pressures used by high-handicap golfers and weekend baseball players, you will notice a profound difference. The hacker holds his golf club or his bat to the point of strangling it. But a professional golfer, on a normal shot, grips his club with just enough pressure to ensure that it doesn’t go flying off when he swings. Same with the baseball player; it was reported that if you had been able to sneak up behind Henry Aaron as he awaited a pitch, you could easily have just snatched the bat out of his hands, with little or no effort. He barely held on, and yet when he swung, maintaining that same grip pressure the whole time, the ball would often go on a nice 490-foot ride.
How on Earth does this have anything to do with oral argument?
Because these pros are doing what I’m suggesting your readers do – they relax when they’re performing. With them, the effect is musculo-skeletal. You can actually hit a golf ball or a baseball farther if you relax your grip. With lawyers, it’s mental. They can think better, they can react better, they appear (and are) more composed, when they relax. The tendency is to tense up when you’re inside the crucible you mentioned, and that fact makes many oral arguments dreadful to watch. But when a lawyer can relax at the podium, it becomes a far more enjoyable and effective exchange, from both sides of the bench.
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Readers of this essay who would like more information on William Pinkney may consult his biography, written by his nephew, the Rev. Wm. Pinkney, entitled TheLife of WilliamPinkney, originally published in 1853 and reprinted in 1969. Pinkney is also profiled in H.H. Hagan’s 1923 book, Eight Great American Lawyers. A shorter, and excellent, essay on Pinkney, including a fuller account of the anecdote related above, may be accessed here .
Readers who wonder what will happen in the 2008 World Series are just going to have to wait.