How Not to Argue an Appeal: A Former Judge’s View

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I agree with conventional wisdom, which says that all things being equal, you can never win an appeal solely on oral argument, but you can lose. I have seen it happen, and not infrequently.

It’s why I used to tell my law clerks that even though one can learn a great deal from the best appellate advocates, one can learn even more from the worst. 

In that spirit, here is a list of things not to do:

  1. Don’t neglect to hone your first sentence.

The first sentence is critical in an oral argument. It may be the last one you have control over until you sit down. 

Having listened to countless oral arguments and read even more briefs, I believe that the most ineffectively utilized things are the first sentence in oral argument and the question presented section of the brief. The latter is a story for another day. But for the former, the goal should be short, sweet and specific. 

Take the opening sentence by Paul Clement in a recent case involving the U.S. Park Service: “Respondents’ efforts to convert all of the land traversed by a Park Service–administered trail into lands in the National Park Service fail for reasons of text, context, and consequences.” 

You know the issue, what he wants and why it’s important.

  1. Don’t assume the court must resolve your case.

I once participated in a moot court at Duke University School of Law, where I was on a panel with former Supreme Court Justice Antonin Scalia. The problem was a typical thorny constitutional one, but the constitutional issue was raised for the first time before us as the “Supreme Court.”

“Obviously, if this were a real case, we would have to send it back,” I said. Justice Scalia and the student advocates stared at me. “We can’t decide a constitutional question in the first instance,” I said. The Supreme Court hears what it wants to hear. The intermediate appellate courts hear what they have to hear.

Still, the first thing I used to look for in an appeal is an exit ramp. When I was on the bench, my clerks and I instant messaged each other during oral arguments, and our discussion frequently involved whether counsel had made a concession or otherwise taken an issue out of contention. We mine for waivers.

  1. Don’t duck the tough questions.

I cannot understand why an advocate would try to avoid a challenging question. That question may well be what led the court to grant oral argument in the first place; if you do not answer it in a way that aids the court, what possible good have you done for the position you espouse?

When I spoke to a Young Lawyers Division group of the North Carolina Bar Association, I was asked what’s the best thing a lawyer can do to prepare for his or her first oral argument. I said, without hesitation, to write the opinion deciding the appeal in your favor, applying the appropriate standard of review and addressing the thorniest, most difficult questions in the record. Then deconstruct it; that’s your outline. You will have done what the author of the opinion will have to do to decide in your favor, and he or she will be grateful if you assist in that effort rather than hinder it.

  1. Don’t remind the court you weren’t counsel below.

If you’re the appellant, it means you lost below. Given the deference to the trial court on factual and discretionary questions, the appellate court will need to know why the trial court erred. This means you will have to know the record.

If you need to explain a procedural misfire, it will not help to say, “I was not at trial.” I know a colleague on the bench who will respond, “Well, counsel, neither was I. But we’re both here now.” There is no excuse for a lack of complete familiarity with the record, no matter how voluminous.

It is also inexcusable to speak pejoratively about trial judges. They operate under severe time constraints and, for the most part, do the best they can. They may have made a call with which you disagree but felt it was the right one under the circumstances—perhaps because of unclear precedent, or perhaps the trial advocacy was not as good as it should have been. But regardless, he or she is a colleague of the panel members before you and should be treated with professionalism and respect. And so should opposing counsel.

  1. Don’t forget to tell the court why the case matters.

BellSouth was one of the first clients I represented in private practice. And as I learned, no one really likes the phone company.

But everyone values universal service and the local loop—that last piece of wire leading into an out of the home. Most big businesses have employees, end users, suppliers and mom-and-pop investors. Without bringing in the violins, it is important to paint a complete picture of the impact of the court’s decision on everyone.

  1. Don’t fail to know or state specifically what you want.

One of the most graphic examples I ever saw of how to lose at oral argument was made by a lawyer on behalf of a major union suing then-Gov. Nikki Haley of South Carolina. The governor had made statements that South Carolina was a right-to-work state, and the union argued that this was an unfair labor practice.

The basis of the union’s argument was clear; the relief it was seeking was not. So 15 minutes into the 20-minute argument, I asked, “What, exactly, do you want us to do?”

“We want the governor to be enjoined from making anti-union remarks,” the union lawyer said.

“What would the injunction say?” I asked

The lawyer said, “For the following reasons, the governor is enjoined from saying…fill in the blanks.’”

“Fill in the blanks for me,” I rejoined.

You see the problem. The lawyer had not thought about the very practical matter of how the court could, consistent with First Amendment jurisprudence on prior restraints on speech, prevent a public official from saying anything—a very basic issue. If we are going to rule in your favor, what do you want us to do and how? And that’s the last thing the advocate should say before sitting down. 

  1. Don’t overlook the importance of mooting.

I have never seen a moot court that was not valuable. I recently flew to Grand Rapids, Michigan, with another colleague who is a former judge, and, along with a federal magistrate judge from the area, we dissected an argument we had all been skeptical of. The client was coming before the circuit in question for the third time, and it was particularly challenging to convey that the current issue was one that had not previously been addressed. We were told that our insights were extremely valuable. 

I know of firms that use internal attorneys who were Supreme Court clerks or are otherwise skilled oralists. They can be an excellent resource. But the value of the perspectives of astute and experienced external lawyers or judges who are detached from a case cannot be overstated.

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