Is there anything appellate lawyers can learn from the recent high-profile telephonic oral argument held in the Ninth Circuit in Washington v. Trump? A Defense Research Institute Appellate Advocacy Committee teleconference recently endeavored to answer that question. The speakers were Mary Massaron and Jerry Ganzfried, and the moderator was Keith Whitson. Here are a few takeaways I gleaned from their presentation:

  • Appellate lawyers can sometimes find themselves in a bind when trying to seek expedited appellate relief. If you wait too long to file, it becomes more difficult to make the case that there is an emergency. But you need time to prepare high-quality papers. Burning the midnight oil may be the only solution here.
  • When you are questioned on an issue that is weaker for your side, one good strategy is to answer the question directly and move on quickly. One of the speakers quoted Justice Scalia as encouraging advocates to yield the indefensible ostentatiously.
  • When you have a procedural argument (such as whether the trial court’s order is appealable) that logically should be addressed first, but you anticipate the court may not be interested in dwelling on at oral argument, you may want to note that the issue is fully addressed in your brief and then state that unless the court has questions on that you will move on to your next point.
  • Appellate courts are often focused on which issues must be decided and how narrowly they might be able to write an opinion. Be prepared to offer alternative approaches that might soften the blow for your client if you do not win on all issues. You may need to clear those with your client in advance of the argument.