When Andy Warhol observed, “In the future, everyone will be world-famous for 15 minutes,” he probably didn’t have appellate arguments in mind. But in the insular world of appellate litigation—where we spend so much time holed up by ourselves researching and writing—a 15-minute oral argument is sometimes our best opportunity to get out and show our stuff. And when you finally get a chance to take to the stage for your big moment, you want to perform at your best. To that end, I offer ten tips designed to elicit rave reviews from your colleagues, your clients, and—most importantly—the judges.
Tip 1: Write the Brief
The first and best way to prepare for oral argument is actually to author the appellate brief yourself. It may sound like an obvious point, but it’s not one that appellate lawyers consistently honor. In large firms, high-powered partners may swoop in for the argument after “the team” has written the brief. In solo shops, it’s not unusual for lawyers to hire law clerks (often students) to do the “mundane stuff” like brief writing.
Anyone who has not played an active role in briefing will never understand the case as well as those who lived with it from draft to draft to draft to final product. This is not to say that the brief can’t be a team effort. But the person who argues the case needs to be an integral part of that team if he or she has any realistic expectation of arguing the case effectively.
Tip 2: Double-Check Jurisdiction
Appellate courts have limited jurisdiction, usually prescribed by an interconnected system of statutes and rules. They will use a jurisdictional defect to avoid hearing your case on the merits if they possibly can—sometimes surprising counsel at oral argument with questions about jurisdiction. Jurisdictional dismissals occur without the issue even having come up at oral argument.
You can guard against improper dismissal by anticipating jurisdictional problems and being prepared to address them at oral argument. Make sure you can articulate the jurisdictional basis of your appeal in a single sentence, especially if your case has not yet reached final judgment in the trial court. And if jurisdiction is uncertain—say, for example, the trial court issued a questionable certification of partial final judgment under Federal Rule of Civil Procedure 54(b)—be as prepared to address the jurisdictional issues as you are prepared to address the merits.
Tip 3: Update Your Research—But Judiciously
Time doesn’t stop just because you have filed your brief. Between the time you file your brief and the date of oral argument, courts may decide other cases that bear on yours. Part of preparing for oral argument is making sure you monitor those decisions and keep your research current. One good system for doing so is to program LEXIS or Westlaw to run periodic research queries on the key cases, statutes, rules, and issues in your case.
Most jurisdictions allow parties to advise the appellate court of new authorities. In federal appeals, Federal Rule of Appellate Procedure 28(j) permits parties to file a 350-word letter that explains the significance of supplemental authority (and permits the opposing party to respond). Some state court rules permit disclosure of new authorities but without the accompanying argument. Whatever your jurisdiction permits, take advantage of the opportunity to make sure the court is working with the current state of the law by the time it decides your case. And be prepared to address these authorities at argument, especially if you have not had an opportunity to address them in writing beforehand.
But there’s an important caveat here: Don’t over-supplement. A new case may touch on an issue in your appeal, but that doesn’t necessarily mean you have to run and tell the court about it if it adds nothing new. Remember that every piece of paper you file adds to the judges’ burden—so make sure your new authority is worth their time. And never use a notice of supplemental authority to disclose material that already existed (but that you somehow failed to discover) when you wrote your brief.
Tip 4: Prepare a Detailed Outline—and Then Chuck It
One of the most effective ways of preparing for oral argument hearkens back to our law school days, when we would outline our courses. I always found that the process of crafting the outline was a more helpful study technique than actually having the outline. It is equally so with oral argument preparation; studying the record and the law carefully enough to prepare your detailed outline is the heart of preparation, even more than studying the outline once you have it.
And, for that very reason, you should dispense with all the papers by the time you take that fateful walk from counsel table to the podium. Go up with nothing but your brain and your charm. I say this for two reasons: First, knowing ahead of time that you will have no notes will require you to absorb the material all the better, thus ensuring that your preparation will be complete. Second, the quality of your presentation will, perforce, be immeasurably better if you have nothing to look at but the judges’ eyes.
The idea of paperless argument strikes some of us at the core of our insecurities. What if I blank out? What if I can’t remember that case name? If you have prepared adequately—and memorized your first sentence (see Tip 5, below)—it simply won’t happen. But for those who remain unconvinced, one simple trick is to have your notes sitting on the corner of the counsel table so that, in the worst-case scenario, you can go retrieve them. For the truly faint of heart, you can bring them to the podium in a closed folder that you don’t dare open unless catastrophe strikes.
Tip 5: Carefully Script—and Memorize—Your Opening Sentence
One of the most successful advertising campaigns for dandruff shampoo told us that we “never get a second chance to make a first impression.” This is even truer in oral argument. Research shows that important judgments materialize in a matter of seconds. Yet some oralists fail to exploit that crucial moment when the mouth first opens and the pearls of wisdom start to drip out. This is your moment to grab your audience. And it doesn’t matter how dry the issue may be; there is always something you can say from the outset to make the case—and your side of it in particular—sound compelling.
That opening sentence goes by many names, from the mundane (“introduction”) to the strategic (“core theory”) to the vernacular (“elevator speech”). But the purpose is the same, no matter what you call it: to distill your entire argument into a crisp and compelling statement that any listener will understand—and that will leave your listener with no doubt about what side of the issue you come down on. It’s not an easy task. Sometimes writing that opening sentence is harder and more time consuming than all your other preparation combined. But getting it right is crucial and rewarding.
An interesting anecdote on this score: In 2010 I had the honor of working alongside Cleveland attorneys David E. Mills and Chris Grostic in preparing Mills for his Supreme Court oral argument in Ortiz v. Jordan, 526 U.S. 1 (2011). The issue in Ortiz was whether the defendants could appeal the denial of their fact-based summary judgment motion, even though they had not reasserted their arguments in a post-trial motion. The three of us pored over Mills’ intended first sentence, until finally we settled on:
Denial of summary judgment is not reviewable on appeal after trial, particularly where the decision depends on whether the evidence on the merits of the claim is sufficient to cross the legal line for liability.
The weekend before the argument, I started to worry that “particularly” was a hard word to enunciate, especially when nerves are jumbled and the mouth is dry. So I counseled Mills to substitute “particularly” with “especially.” At the argument, no sooner did he eke out that first sentence (with my suggested revision) than Chief Justice John Roberts interrupted him and seized on my suggested word:
I’m sorry to interrupt so quickly, but that “especially,” I take it—I take it, is a concession that there’s a difference between claims for qualified immunity based on evidence and claims that are based on law.
It was good for a laugh afterward, of course. But it also demonstrates that we were correct to obsess about the wording because it inspired Chief Justice Roberts to zero in on one of the most important aspects of the case. (In the end, we won, 9–0.)
Tip 6: Road Map Your Argument
Medical studies tell us that people are much more comfortable in the doctor’s office if they know what’s coming. If the doctor says, “I’m going to listen to your heart with my stethoscope, and then I’m going to palpate your neck to feel your arteries,” we are much more relaxed than if the doctor simply starts to do these things without warning.
Judges aren’t usually worried about being palpated, but the same principle applies. Everything goes down more easily if we expect it. It’s simply less taxing to follow. So warn your judges what path your argument will take. It’s easy to do, and it will help ensure that you structure your argument logically. Here are three important considerations to keep in mind as you craft your road map:
1. Disclose the ultimate destination. The best road map starts off with a general statement, which is usually the major proposition in the case. A generic example for the appellant might be: “We ask that the court reverse the erroneous trial court judgment.”
2. Disclose the distance. To fill out your road map, tell the court how many arguments you’re going to make in support of that statement (e.g., “for three reasons”). Three is a good number; you’re unlikely to be able to cover more than that in only 15 minutes.
3. Disclose the route. Briefly list each of your arguments, using ordinal numbers. “First, the trial court erred in letting the case go to the jury; second, the trial court wrongly excluded evidence; and third, the trial court gave the jury an erroneous legal instruction.” Don’t give detail here; that will come later (or not, depending on how much of your prepared argument you get a chance to deliver).
You’ll notice that for each of these elements, I used the word “disclose.” Lawyers are sometimes inclined to keep information to themselves, not to reveal their work product or their thinking for fear of giving away strategy. This might be an important concern when dealing with opposing counsel in the throes of discovery or trial, but the opposite instinct should kick in when talking to a judge. This is the time for full disclosure. This is the moment that all the strategizing has led to. You’ve worked carefully to build the best hand, so feel free to tip it at the beginning of your argument!
Also remember that road maps aren’t just for your opening. You can use them even in answering judges’ questions. If a judge asks a question to which you have multiple responses, tell the judge so before you start listing them (e.g., “There are three answers to that question, Your Honor”).
Tip 7: Aim for a Real Conversation
The goal of oral argument is, of course, to convince the court that your argument is more persuasive than your opponent’s. So ask yourself: Are you generally easier to persuade when someone is talking at you or with you? Most of us would agree that the latter approach—the conversation, rather than the lecture—is a better way to convince us of the merits of an argument. It’s no different with judges.
If you buy the premise that a conversational argument is more effective, it becomes important to appreciate the most effective components of conversation and to fold them into our presentation. It comes down to four basic points.
First, like any other conversation, listening is at least as important as talking. When judges ask questions or raise concerns, they are giving you important windows into their thinking. Only if you listen carefully to what they say can you respond and tailor your presentation to meet their concerns. Then, answer those questions as directly as you can. If they ask a “yes or no” question, give them a “yes” or “no” answer—and then, if necessary, elaborate to make that answer fit into your overall argument.
Second, it’s a group conversation. Make sure you engage the whole group, not just a single judge. Of course, you sometimes can intuit which judges may be your primary targets. For example, if you know from past experience that one of the judges on a three-judge panel is already likely to come out your way, the main focus of your energies should be on the other two. Similarly, if you know you have no hope of winning over a particular judge, engaging him or her at length may not be the best use of your time. But aside from these strategic considerations, you should strive as much as possible to give each judge equal time.
Third, as with any other conversation, relate what you say to what others have said. This is especially important in rebuttal, where the appellant gets a chance to respond to the appellee’s argument; do whatever you can to connect your rebuttal to a judge’s question or comment to your opponent. Doing so not only helps you emphasize the point in question, it also makes the judge feel good, as if you were actually listening to what he or she said. Never pass up an opportunity to make someone feel heard, even an appellate judge!
Fourth, anticipate the tough questions. Talk the case over ahead of time with smart people who will find the holes in your argument. Craft answers to fill every one of these holes or, if appropriate, concede them (see Tip 8, below). Anticipating questions will also allow you to create pathways from your answers back into your prepared argument, thus increasing the likelihood that questions will enhance your flow rather than disrupt it.
Tip 8: Concede What You Can
Lawyers tend to be reluctant to concede anything—even points that we don’t really need to win. It’s ingrained in us not to give any ground unless we absolutely must. Instead of conceding outright, some lawyers use that awful word, “arguendo”—as in, “even assuming arguendo I’m wrong on Point X, I’m still right on Point Y.”
But, to borrow from Ecclesiastes, to everything there is a season. A time to refute, a time to concede. And oral argument is the time to concede weak points, so long as the concession causes no disruption to the integrity of your argument. Refusing to concede points that you cannot win comes across as defensive and suggests that you are unwilling to evaluate your case objectively. This defensiveness, in turn, undercuts your persuasiveness.
By contrast, conceding points you don’t ultimately need to win accomplishes two important goals: establishing your personal integrity with the court and emphasizing your confidence in the strength of your overall argument. A good example might be an appellate decision from another jurisdiction that goes against you. If it doesn’t control your court, you might be better off conceding that it goes against you rather than trying to concoct a weak way to distinguish it. You can forcefully argue that your court should not follow the erroneous decision of the other court, and your argument is all the more forceful if you don’t shy away from what the other court held.
Tip 9: Make It Look Fun
In The Adventures of Tom Sawyer, Tom famously got out of whitewashing Aunt Polly’s fence by making the task look like a treat. “Like it?” he said. “Well, I don’t see why I oughtn’t to like it. Does a boy get a chance to whitewash a fence every day?”
These days, kids get precious little opportunity to whitewash fences. But lawyers still get the chance to deliver oral arguments. And the more fun you show the court you’re having, the more confidence you exude—which is precisely the way to convince the court that you have the better side.
Fun is contagious. People who see other people having fun want to have fun, too. Especially in the drudgery of the law, where fun is sometimes the very thing we’re missing, a lawyer who can stand up and make a joyful noise is naturally going to attract a more favorable response from the other participants in the conversation.
And the best part is this: When you behave as if you’re having fun, most of the time you actually do.
Tip 10: Moot Your Argument with a Mixed Audience
In a famous vaudeville joke, the straight man asks the question, “How do you get to Carnegie Hall?” The answer, of course, is “Practice, practice, practice!” That’s also the best way to get to the court of appeals. There is not a single appellate argument that cannot be improved by testing it in front of an actual audience. The more you practice, the more comfortable you will feel in your paperless walk up to the podium (see Tip 4, above).
Picking the audience should be a thoughtful exercise. Yes, colleagues in your firm are good choices, but be careful about choosing people who are already biased in your favor or—just as dangerous—eager to show you how smart they are by giving you an unnecessarily hard time.
And lawyers are not the only folks who can give you good feedback. Do a few moot courts with laypeople. There is a value in getting reaction from people who don’t know the law—they can help you identify things about your case that just don’t make sense or just feel wrong. And because they don’t necessarily understand legal doctrine and authorities, they’ll give you more thoughtful feedback on presentation style that your lawyer colleagues may miss.
Make the Most of Your 15 Minutes
The universal consensus about your 15-minute oral argument is that, like a reality celebrity’s 15 minutes of fame, it goes by too fast. So make the most of it, and then savor those moments as they slowly fade into memory. With any luck, you’ll get a decision down the road that will serve as a happy reminder of your glorious time at center stage. And if not, your next argument is just around the corner, offering you an opportunity for a triumphant comeback.
Andrew S. Pollis (firstname.lastname@example.org) is an associate professor at Case Western Reserve University School of Law in Cleveland, Ohio, where he teaches in the Civil Litigation Clinic and coordinates the law school’s appellate practice program.
Previously published in the ABA’s GP Solo.