WHAT NOT TO SAY
Ten things trial lawyers do wrong in appellate oral argument
This afternoon, Tuesday, August 29, I was in the Supreme Court for oral argument on a petition, and to watch the argument in another case in which I represent the appellee. Since the arguments were scheduled at divergent times, I got to watch somewhere between 15 and 20 of them, a few of which were handled by appellate lawyers, but most of which were done by trial lawyers. I saw some advocates handle things very well, and others . . . trailed slightly. Here’s a list of ten sins I see all too often, and how to avoid them in your next oral argument.
For obvious reasons, I will not identify any lawyers (except myself, in one painful memory) or any specific cases below. Some of these sins occurred on other days in which I have heard arguments; I didn’t get to see all ten of these today. By the way, the adversary I watched today did a fine job of following these rules.
Following the suggestions below won’t turn a hopeless case into a sure writ, but you can avoid the opposite conversion, and you’ll gain credibility with the court. That priceless commodity isn’t widely available elsewhere, so you should do whatever you can to cultivate it
Finally, I apologize if some of these suggestions seem a tad harsh. I sincerely am not attempting to demean any attorneys here; my goal here is to enable my readers to become better advocates, and to prevent what I will euphemistically call Bad Things from happening to you. Stark examples are generally the best teachers.
Never lecture the court – My friend and colleague George Somerville, an outstanding appellate advocate, has described the ideal oral argument as a conversation between the attorney and the court. He’s absolutely right. The very best ones are collegial but respectful, where civilized people talk about a legal problem and how best to address it. The tendency for many trial lawyers, believe it or not, is to talk down to the court, as though they’re directing the court in what should – nay, must – be done to rectify this grievous situation. Resist that urge, and remember that you’re trying to persuade the court. It’s far better to do that gently than by forceful “commands.”
Don’t whine – This should not require any explanation, but I’ll just mention one thing. The reason you’re there is because you felt that a trial judge made a mistake in your case, and that mistake was prejudicial. Guess what? Everybody else in the room is there for the same reason. Don’t feel oppressed, and never convey such an image to the court.
Don’t attack the trial judge – It is possible, even good form, to treat the trial judge with respect, even as you assert that she made a mistake in your case. The perfect judge has yet to receive a robe and a gavel, and your judge isn’t sinister or incompetent merely because she ruled against you. One argument I heard recently featured a commentary by a lawyer, in a “Get this!” tone, that was worthy of a domestic relations complaint-fest with Dr. Phil as the arbiter; the lawyer stopped just short of saying, “Can you believe the judge made this many mistakes in just one case??” In avoiding this error, you should also avoid using the trial judge’s name, unless it’s absolutely essential – and I can’t think of any way in which it would be essential. Calling the judge by name personalizes the attack on the human instead of on the ruling.
Don’t interrupt the justices – Trial lawyers are used to having the floor, often for a practically unlimited amount of time. They get to argue the case to the jury; they get to argue motions, with no time limit; they argue instructions at length; all but the most curt trial judge will listen to just about anything you want to say before announcing a ruling. Not so in an appellate court, where argument time is doled out with tweezers, and the court often wants to hear argument on a point that you might not get to in your ten minutes. Interrupting a trial judge is bad form as well, but doing it in an appellate court is going to get you The Death Stare (which is a Bad Thing) at best and a stern admonition at worst (the worst case usually being reserved for repeat offenders).
Don’t be somewhere else when your case is called – Consider how many times have you been in a trial court when a case is called, one lawyer isn’t there, and someone says, “He’s out in the hall; I’ll go get him.” A few minutes later, the lawyer walks in, and things proceed without any fuss whatsoever. That’s a perfectly normal development in trial courts across the Commonwealth (though I’m sure there are trial judges who get impatient in short order if this happens). Again, consider the disparity in time; the trial judge has much more time to devote to each case. Appellate courts schedule five or more oral arguments for each hour of their writ panel days. Time spent waiting for an attorney to arrive from outside is a precious commodity. In this particular, I can share the painful memory of being in the appellant’s work room recently when my case was called after a surprisingly speedy argument docket. When my co-counsel came to tell me, I gathered my notebook and made my way quickly into the panel room, hoping to conceal my mortification at this breach of etiquette. The justices were probably waiting for me 25 or 30 seconds, which doesn’t seem like much until you try waiting that long in a silent panel room. To avoid a repetition of this problem, I have now arranged with the Capitol Police to camp out in the panel room the night before each of my future arguments. (No, not really.) Today, one case was called and no one stood up to argue. After a short time, the court simply passed the case and called the next one; that petition will probably be summarily dismissed.
Don’t shortchange the record – This is often cited as the first rule of appellate oral argument. If you’re going to argue the case to the court, you must know what the facts are and what the proceedings were in the trial court. If the appellate court knows the record better than the lawyer does, a grisly death generally ensues. One lawyer found that out recently when he made a representation that there was nothing in the record to establish Fact XYZ. One of the justices then asked him, “What about this part of this pleading, in which Fact XYZ is specifically certified?” (Gulp!) A horrifying silence ensued, during which the unfortunate lawyer tried to think of something, anything, to say. I’m sure he hadn’t intentionally misrepresented the record, and I’m confident the court didn’t suspect that. But he lost a great deal of momentum, not to mention confidence, by the unwelcome disclosure.
Don’t read your argument – Do you like looking at the top of someone’s head while he reads something that’s supposed to be persuasive to you? Of course you don’t; owing to the key nonverbal signals we each get and give through eye contact, everyone prefers to look the speaker in the eye at least most of the time. (By the way, remember that the justices sit on an elevated bench, so when you look down, all they can see is the top of your head.) Today, I saw two persons read their arguments to the court. One of those was a layman who came in to argue his own petition for appeal. I respected him for his guts in doing that (although he would have been far better advised to hire an appellate lawyer); this can be an intimidating environment for many lawyers, and is completely foreign territory for laymen. The other reader was, I think, a lawyer. His delivery of his script made everyone in the courtroom uncomfortable. Remember, there’s nothing wrong with using notes while you speak. I use them, as does almost every other appellate lawyer I know. But we don’t deliver a set, canned speech, and you shouldn’t, either.
Don’t qualify in advance your answers to questions. When a justice interrupts you to ask a question, don’t panic. This is a natural occurrence, unless your petition is a stone cold loser and the court is just biding its time until your allotted minutes expire, so it can get on to the next case. (If that happens to you a lot, you need to focus on case selection.) Answer questions directly, and then give your explanation. Remember also that not all questions are designed as attacks on your position, or on you. Sometimes a justice just wants to find out a nuance of your position that isn’t apparent from the state of the briefs. The important thing to do is to answer the question immediately and directly. This means answering the question her honor asked, not talking about some other point because she has touched a sore spot in your legal argument. The court will always give you time to explain your answer – they’re in the explanations business, so they want to hear yours – so go ahead and give her a direct yes or no, and then say something like, “But here’s why that circumstance doesn’t control here . . .” If a justice has to ask a question twice, the red flags are flying and the sirens are blaring; you need to give a direct answer, and give it now.
Formality is a good thing (but don’t overdo it) – It is accepted practice in Virginia’s appellate courts to begin by introducing yourself, no matter how well you think the court knows your face. I recommend beginning with something like this: “Good afternoon; I’m John Jones, and I represent the seller in this appeal involving a failed real estate contract . . .” I heard one lawyer recently begin by announcing, “John Jones here; I’m ready to present the oral argument in Johnson v. Smith.” “John Jones here”??? It is possible to go overboard, though, and you should avoid both extremes. You have probably heard lawyers in various courts laying on the flattery with a trowel, in Benjamin Disraeli’s words. They load up all aspects of their argument with “May it please the court” and “this honorable court” and so forth. They do that, by the way, because that’s the way lawyers talked in the Nineteenth Century, and also because they figure they can make points by saying nice, complimentary things about the justices. They sometimes come across as smarmy sycophants when they do so, and that perception does not escape the court’s notice. One “May it please the court” is fine; anything more than that, and you start down the wrong path. By the way, it is not good form to begin with a self-introduction in the Supreme Court of the United States. There, you must begin your argument by intoning the magic words, “May it please the court,” and then launching into your argument.
Don’t fail to anticipate questions – As noted above, you are going to get questions, in most of your arguments. It makes no sense to go into the courtroom having prepared a speech, but not having prepared for what the court might want to know beyond your fine rhetoric. Spend at least some time thinking about the weak points of your case (in fact, you’d probably better spend a lot of time doing that), so when the inevitable question comes, you won’t have to craft an answer on the fly. If you don’t do that, there are several Bad Things that can happen, including giving an inadvisable answer that ends up sabotaging your case, or just standing there, staring without knowing what to say. In the military, they have a saying that’s applicable here: You sweat on the training ground so you won’t bleed on the battlefield. Save your blood for a Red Cross donation.