Too often, lawyers approach oral argument with a misguided mindset. Unlike jury summations, high-school debate, or even the recent presidential impeachment hearings, oral argument to a judge or panel of judges isn’t really supposed to be an argument at all. It should be a conversation—and one for the benefit of the judges, not the advocates—to address the judges’ concerns, thereby demonstrating that your position holds up under scrutiny.
One (possibly apocryphal) story from the 1960s illustrates the point with some force. A senior lawyer from northern Minnesota was giving his first argument to the Minnesota Supreme Court. Early on in the argument, one of the justices asked a question. The attorney paused for a moment, and continued his argument without answering question. Then came a question from another justice, which was also ignored as the lawyer continued marching through his outline. Finally, the notoriously irascible and intimidating Chief Justice Oscar Knutson growled, “counsel, what about the justices’ questions?” The attorney deadpanned, “I was wondering when you were going to start doing your job. I drove all the way down here to give my argument, and I keep getting interrupted!”
If you were wondering how realistic this tale would be in today’s appellate practice, consider the recent incident before a panel of the Second Circuit. As reported in the December 12, 2019, ABA Journal, a member of the panel asked the plaintiff’s attorney a question about his client’s claim of injury, and the attorney responded, “Are you serious, judge?” And he followed that with a sarcastic “I see that you read the briefs thoroughly.” The court told the attorney to sit down, and he was ultimately removed from the courtroom by courtroom security.
Although much of it probably falls under the teachings of Robert Fulghum’s bestseller, “All I Really Need to Know I Learned in Kindergarten” (or at least 1L law school), the Federal Circuit recently felt compelled to issue a series of what might be considered remedial guidelines for presenting oral argument. See Federal Circuit, Guide for Oral Argument (January 2020). The Federal Circuit’s guidelines repeatedly underscore the expectation that oral argument should be a conversation with the judges, for the benefit of the judges, in which the advocates should come prepared with the tools that the judges need to make a reasoned, supported decision.
Number one on the list? “Counsel should not interrupt a judge.” While this advice should be as basic as standing up when the judges enter the room (also denoted in the Guide), practitioners, in their fifteen-minutes of adrenaline-packed presentation, often either fail to even hear the questions or fail to resist the urge to respond before the question has been fully asked. Questions—whether they are softballs or skepticism-soaked fastballs—should always be welcomed and carefully listened to because they likely address issues that will be pivotal to the court’s decision and represent the appellate advocate’s best opportunity to use oral argument to influence the outcome (for good or ill).
When it comes to how questions should be answered, the Guide is equally direct: “Answer questions directly.” Again, advocates should remember that they are not adverse witnesses, trying to avoid being pinned down under cross-examination. Side-stepping, redirecting, and filibustering questions from the bench only highlight weaknesses in your position.
Directness of response often comes down to a matter of sequencing. The properly sequenced answer to a “yes” or “no” question should be: (1) “yes” or “no”; (2) whatever explanation or clarification may be necessary to demonstrate why that answer supports or does not undermine your position, and (3) a segue back to the themes of your presentation. Any other sequence not only irritates the judges, but undermines the advocate’s credibility and ultimate persuasiveness.
Similarly, if a judge asks a hypothetical question, answer the hypothetical exactly as it has been framed, and then compare or contrast it with the case. As explained in the U.S. Supreme Court’s Guide for Counsel, published in October 2019, “In the past, several attorneys have responded: ‘But those aren’t the facts in this case!’ The justice posing the question is aware that there are different facts in your case, but wants and expects your answer to the hypothetical question.” Hypotheticals are often designed to test the principles underlying your argument, and how the rule of law you are advocating might affect other cases that would come before the court. For that reason, you should have in mind the limiting principles that might distinguish your case from hypotheticals that could stretch your position too far.
Like a good conversationalist, an advocate should listen closely to questions posed to the opposing lawyer. Responding attorneys should maintain enough flexibility in their presentations to use exchanges between the judges and the opposing attorney as the starting point for their presentation.
The advocate’s oral argument approach should seek to put themselves in the shoes of the judges. Imagine that, instead of stepping to the lectern to just make a persuasive speech, you are a judge in in the post-argument conference, there to have an informed, respectful conversation about why the facts and the law support your client’s position.
At the end of the day, counsel should remember that oral argument is not about them, it’s about the case and, most importantly, making sure that the judges leave the bench with a clear understanding of why your client should win, with all of their troubling questions answered, and unpolluted by irritations caused by your conduct.
Eric J. Magnuson is a partner at Robins Kaplan LLP and served as Chief Justice of the Minnesota Supreme Court from 2008 to 2010. He has more than 35 years of experience practicing law and he focuses his practice almost exclusively in appellate courts.
Stephen Safranski is a partner at Robins Kaplan and practices in complex commercial litigation and appeals