I recently listened to an ABA Section of Litigation Roundtable entitled ““Appellate Practice: How to Grab, Keep, and Kill the Panel’s Attention During Oral Argument.” The program featured advice from Judge Andre Davis, Senior Judge for the U.S. Court of Appeals for the Fourth Circuit, and Judge Kem Frost, Chief Justice of the Fourteenth Court of Appeals in Houston, Texas.
Here are a few takeaways I picked up from the judges’ advice:
- Set the Stage: As the appellant, try set the stage for your argument by explaining that you have usually 2 or 3 points to make. If you set the stage right, the panel might not interrupt your first 90 seconds. This also may allow you to take the argument in the direction you want it to go, if the panel will go along.
- Show the Path: Show the court the path to the rule that you want the court to adopt. Remember that the judges are thinking about not merely resolving your case but the legal impact on future cases, and potential limiting principles and slippery slope concerns.
- Help the Court Write the Opinion: While the judges may come into the oral argument with a strong view of how the case should be decided, oral argument can frequently have a real impact on how the opinion is structured and reasoned. An advocate who does not prevail can sometimes help make the result less harmful to your client’s interests in future cases.
- Take On Your Weak Points: Take on the adverse authority and difficult parts of the case directly with the best response you have to them.
- Know When to Sit Down: Read the bench. When the court has heard enough, end your argument before your time has expired.
- Have a Moot: Always have at least one moot. You never want the first time you are trying out your argument to be in the appellate court.
- Don’t Call Names: Generally refer to the lower court as the district court or trial court, rather than referring to the lower court judge by name. As the appellant, you are attacking the ruling, not the person who made it. You never want to be perceived as criticizing the trial judge personally, and the appellate judges want to avoid that as well.
- Get Help From Your Team: Bring other lawyers on your team to the oral argument where appropriate, and do not hesitate to ask the panel for a few seconds to consult with a colleague if a question arises that you are uncertain about.