Tackling Your First Appellate Oral Argument

WDC Journal Edition: Spring 2017
By: Kathryn A. Harrell, Boardman & Clark LLP

Introduction

Preparing for an appellate oral argument can be both exciting and daunting, especially if you lack prior appellate experience. While there is no method of preparation that works for everyone, using a few of the tips below may ease your stress. Undoubtedly, you will get different advice from a number of attorneys. At the end of the day, you should create a plan that fits your comfort level. The best advice, however, is to be very prepared. Unquestionably, preparedness will give you the confidence you need to tackle your first oral argument.

1. Plan Your Calendar.

It is important that you set aside sufficient time to prepare for your argument. First timers may underestimate how much time it actually takes to prepare, which may mirror that of preparing for a jury trial. Depending on the complexity of your case, you might need to set aside an entire week, including weekend. Also remember that, in all likelihood, by the time oral argument is scheduled, you will have forgotten many of the factual and legal details from the briefs that you will need to relearn, and perhaps even re-learn at a level exceeding what was required for you to write the briefs in the first place.

Further complicating this is that oftentimes, you will not receive much advance written notice of when your argument will be scheduled, which can make it difficult to set aside adequate preparation time. To ease this problem, the Seventh Circuit Court of Appeals requires counsel to notify it of potential date conflicts prior to the scheduling of oral argument.1 It is important that you know about this rule because the court is extremely reluctant to reschedule an argument after it has been noticed. Accordingly, once you know that oral argument has been requested and immediately after the reply brief is submitted, you should write the court and alert it to scheduling conflicts you have over the next several months.

2. Re-Read the Briefs and the Lower Court’s Ruling.

This is a great starting point. Try reading the briefs in order, which is likely the same way the judges on your panel will read them. It goes without saying that, if you represent the appellant, review these documents with an eye towards how the lower court’s decision was incorrect. If you represent the appellee, review these documents with an eye towards how the lower court got it right.

3. Know the Record Inside and Out.

In many cases, the judges are more interested in asking practical, record-related questions about the facts of the case, rather than legal questions. As such, it is critical that you know your record extremely well. You should also be keenly aware of what is not in the record so that you can promptly and politely alert the court in the event your opponent presents arguments based upon information not in the record.

4. Prepare an Outline and Structure Your Argument.

Preparing and revising an outline at the beginning of your preparation has tremendous value. Most experienced appellate attorneys advise you to avoid creating a word-for-word script, as you may get too bogged down in a rehearsed speech that you are not likely to get through anyway. However, writing down a word-for-word script with respect to some aspects of your case can make sense at the outset, and this may be a useful tool so long as you abandon the script by the time of argument. This is particularly true with respect to your opening statement, which is often the most speech-like portion of your argument. When presenting, it is important that you make eye contact with the judges and advocate in a conversational tone. An outline will facilitate this type of advocacy better than a verbatim script.

In preparing your outline, you should be mindful that how you order the issues most likely will not be the direction your argument takes due to questioning by the judges, who often want you to address specific issues immediately rather than waiting for you to discuss them when they come up in your outline. With the exception of your opening and closing statements, then, you should be prepared to jump to any part of your outline at a moment’s notice. Because of this, you should practice your outline out of order. Remember that an outline is a tool to help organize your thoughts. It should not be your crutch. You might start with a long detailed outline, but that should not be what you bring with you to the podium. By the time of argument, you should try to condense your outline to several pages that contain key words and phrases.

With respect to structuring your argument, you should anticipate the biggest issue in the case and address that first. Saving that issue for the end or building it up throughout your argument makes little sense as you will run the risk of running out of time before you can address it. Also, either at the outset of your argument or after your opening statement, you should address the key points made by your opponent. Completely ignoring your opponent’s argument is a mistake. Indeed, the judges may have trouble paying attention to your argument at all if they are fixated on an elephant in the room which you have not addressed. It is also important to address your opponent’s argument in order to show the judges that you can think on your feet.

5. Prepare a List of Important Record Cites and Cases.

Many new attorneys may wonder whether they have to memorize every case, with cites, that appears in the briefs. Generally, this is not necessary, although you should be prepared to state the applicable standard of review and relief sought without resorting to an outline. Instead, you should focus on the critical cases. Knowing the names of the key cases and the significant facts or holdings from those cases should be sufficient. Most seasoned appellate attorneys will tell you that, unlike in law school, the judges rarely quiz you on a case to test your memory. Use of specific case names should be done sparingly. Unless a case is critical to the court’s analysis, it is best not to throw around case names.

In addition to your outline, you should consider making a one-page list of significant record cites and cases that you can bring with you to the podium and refer to if necessary. This should not be a long document that you have to page through, as that may appear sloppy. Rather, this is a quick reference guide in the event you need it. Similarly, you should not bring with you to the podium binders and binders full of briefs and cases.

6. Anticipate the Questions You Will Receive.

As you prepare for your argument, ask yourself why the court granted the oral argument request in your case. Consider the weaknesses of your case, even if your opponent has not done a good job addressing them. Not only should you consult with other attorneys in your office who worked on the case with you, but it is an excellent idea to have a few attorneys who know nothing about the case review the appellate briefs and tell you what questions they think will be thrown in your direction. Try this with attorneys who have different practices than you. Their anticipated questions may be very different from what you anticipated, so it is best to have this discussion towards the beginning of your preparation rather than at the end in the event you need to develop responses to unanticipated questions.

While judges know that they can only consider the record evidence in rendering their decisions, nonetheless they may ask you a question about an issue or fact that is outside the record. Hopefully, you have anticipated this sort of question and have a response. Don’t be afraid to get insight from your client or another source prior to argument about background and contextual details of the case that are not part of the record but that may nevertheless generate questions from the panel. At the very least, knowing that you did this will help you feel more comfortable.

7. Listen to Other Oral Arguments and Know What to Expect on the Day of Your Argument.

If you have never attended or listened to an oral argument before your first one, then you should certainly do so. You can access oral arguments before most appellate courts online for free. While it largely depends on the nature of the case, many judges seem to focus on the real-life implications of their decisions. To that end, their questions often seem more practical, focusing on the facts rather than the nuances of the law that have already been briefed. You should keep this in mind as you prepare.

If there are similar cases you have cited that were before the same court and you have the ability to listen to an argument from those cases, then do so. While you probably won’t get the same panel of judges, the more you can familiarize yourself with the process, the more prepared you will feel.

If you are going to the argument alone, it is a great idea to talk to someone who has done it before and who can walk you through what to expect on the big day, ranging from security checks to how cases transition from one to the next in the event multiple cases are scheduled for argument at the same time. In the event you know your panel of judges before the day of your argument, do your research and listen to arguments from cases over which they have presided. This will give you a good sense of their style of questioning.

8. Practice with Co-Workers and Friends or Family.

This is one of the most critical steps. The more you rehearse your argument out loud, the more comfortable you will be. Get used to saying important case names and difficult legal phrases out loud. Practice in front of different people, including family members who won’t be afraid to give you honest feedback. Practice in locations other than your office. This could be in your car, on a walk, or in the shower. The more you practice, the more confidence you will have.

9. Additional Tactics and Skills to Use During Argument.

It is impossible to address all the tactics that can be used in oral argument, but remembering a few key ones should help. First, if you are asked a question, be straightforward and answer it directly. Start with a “yes” or “no” response followed by an explanation. Avoiding a question will cause you to lose credibility with the panel. Second, if you are asked to concede a point that is not in your favor, don’t be afraid to do so. Acknowledging points unfavorable to your position that you really have no basis to dispute will help you gain credibility. Third, never argue with a judge. That goes without saying. Fourth, if asked a difficult or unanticipated question, take a moment to think about your answer. We are often tempted to jump in with a response and fear a brief moment of silence. Don’t let that be the case. Take a moment and provide a thoughtful response. Finally, stop talking if you have nothing else to say and have a cold bench, even if you have time to spare.

Conclusion

The best way to successfully navigate your first appellate oral argument is to be prepared. Preparation will ease your nerves and give you the confidence you need. But even if all else fails, remember that the briefs are the most important part of the appeal. Although oral argument is important, it rarely makes or breaks a case, so try to relax and make the most of it.

Biography

Kathryn (Kate) A. Harrell has over ten years of experience as a trial lawyer. Her trial and appellate practice focuses on the representation of insurance companies, municipalities, individuals, and businesses in tort and employment litigation in federal and state court. These claims range from defense of excessive force claims to dog bite claims. Kate also practices in the area of municipal law and serves as the Prosecutor for the Village of Waunakee and as a Special Prosecutor for the City of Beloit.

References

1 7th Cir. R. 34(b)(3).