Another treasure trove of information to level up your practice

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Welcome to the Best of The Portia Project. This is the second of three episodes that focused on improving lawyers’ skills. Our first compilation episode focused on brief writing. This one focuses on oral argument.

Many of the judicial guests on The Portia Project podcast have shared their tips for oral arguments. And here, we compile many of them into a short compilation episode. Judges provide insights into arguing at particular levels of the court system, whether it’s intermediate appellate courts or supreme courts, the art of responding to judges’ questions, and elements of persuasion, as well as discussing the mindset that judges are in when they are on the bench listening to oral arguments.

So again, this is another treasure trove of information to level up your practice. The Best of The Portia Project, Judges’ Top Tips for Oral Arguments. Enjoy.

Chief Justice of the Utah Supreme Court (former, retired) Christine Durham

People often ask, “Is oral argument important,” and I don't know about that at the court of appeals level as much. I know they hear more cases without argument. We never heard cases without argument. I found the argument, particularly, if it were conducted by a very well-versed counsel, a counsel who knew their cases well and who had thought about all the points I made, and who were willing to enter into a conversation and give you a chance to say, “I don't understand how this will work. Can you explain why this isn't a problem?”

I have them put their notes down and say, “Here's why that isn't a problem. Here's the way you can solve that particular issue.” I always enjoyed the exchanges in oral arguments. I found that there were a fair number of cases. You develop a feeling for a case as you're preparing it and having your law clerks do some research and talk with you about it. However, I always try to reserve judgment until after the oral argument.

I know some judges prefer to even draft opinions before the oral arguments. I don't think I ever did that even though I would have outlines and ideas about where I was going. However, I wanted the benefit of that conversation and I also wanted the benefit of the conversation at the conference. I worked with very able and intelligent colleagues over the years and I figured, if they'd been doing all this work too, it would be very helpful to me.

I should have kept track of it. There were too many years and cases but there were cases where I shifted my initial perspective as a result of what happened at oral argument and conference. People should never assume that there's a foregone conclusion or even if you think there is, try to find out what it is so that you can address it in your opportunity to talk with the court.

A lot of questions from an appellate bench are directed to counsel but they are often meant to surface an issue that you know another colleague has or will have and to give a lawyer a chance to address it. Even sometimes, it's fair to say that in the way you frame the question and provide the background for it, you are doing a little bit of advocacy for a position that you think has merit. Be attuned to those nuances.

I've wondered. Over the last several years, we've moved to Zoom arguments in so many courts. It's better at the appellate level but I do think that perhaps we've lost some of that interaction. If you can see the whole bench at the same time, that's very helpful. You've got to explore the impact of whatever principle you're being asked to articulate on sometimes generations of cases in the same field. That makes appellate work special. In the sense that yes, you're solving problems but you've got to solve them in the big context very often as well as in the individual context. It's challenging and exhilarating.

California Court of Appeal Justice (retired) Margaret Grignon

First of all, you need to be prepared. What I do is I prepare unendingly. I do everything I can think of to prepare so that when I go to oral argument, I'm not worried about not being prepared. I know the barring catastrophes, the answers to the questions I'm going to get asked, and what the case is about, the record, the cases that are cited, and all of those things. I go into court without that burden of wondering if I'm going to not know something.

When I get to court, the important thing, and probably maybe it's a little bit easier because I've been on the other side of the bench but I want to have a conversation with the justices. I don't want to talk to them or give them a speech. I want to see if I can get them to talk with me, talk about what their concerns are about the case, what they would like to know, and what the issues are, and then have this free-flowing conversation.

When I can have that, it's when I do the best and my arguments are the most successful. It's listening and trying to pay attention to what the justices indicate they're interested in and making sure that's what you're talking about. To be honest with you, they've read your briefs and they know what you've already told them. Unless you have some wonderful new insight that they haven't heard before, the argument is not very interesting to them if you keep telling them the same thing you told them in your briefs.

Ohio Court of Appeal Justice Christine Mayle

In terms of oral argument, what would be most helpful is to focus on the toughest issue that you have. You shouldn't use your time to repeat what is the most obvious or winningness of your positions if those winning positions aren't going to be necessarily outcome determinative or there's another issue there that is more difficult for you that we would have to overcome to rule in your favor.

In an oral argument, focus on the toughest issue that you have. You shouldn’t use your time to repeat the obvious.

Although it's more comfortable, use your time to nail down those cases that are in your favor and why you have the best arguments in other areas. What we want to do during oral argument is test our theories but drill down on what are the weakest points of our position. What has your opponent brought out that makes it hard for you and how do you respond to that?

Maybe it's a Supreme Court case that you have to distinguish for us or take us through some of this history of the statute and how it's worded. Also, why it means that you can overcome some of the language that I'm reading in this section of the statute that doesn't seem to be so good for you? Use that time for oral argument to help us overcome whatever the biggest hurdle is for us to rule in our favor.

Presiding Justice of the California Court of Appeal (Fourth Appellate District, Division Three) Kathleen O’Leary

Both in terms of brief writing and oral argument, be concise and persuasively make a statement of what your position is. A lot of times, it’s like, “The court should do this but if not, it could do this. If not that, it could do that.” It loses it. I understand you want to have backup positions but come on strongly with what you want us to do and why we should do it. That helps both in your briefing and oral argument.

In oral argument, if you're asked a question, answer it. That seems simple. I can't tell you how many times we ask a lawyer a question and we get an unresponsive answer. It may be that we've asked something that you're not familiar with but you'll have more credibility with the court if you say, “Your Honor, I'm sorry. I'm not familiar with that case. I don't know where that is in the record. I'd need to give that some thought.”

In an oral argument, if you’re asked a question, answer it. That seems simple but too often, the court asks a lawyer a question and they get an unresponsive answer.

You can always ask to file a letter brief. “If it's important to the court, I could file a letter brief but I apologize. I don't know the answer right now.” When that happens to me, I'll ask the question the second time because maybe I wasn't clear but if I get another non-responsive answer, I give up. That's what it should be, is a discussion.

Sometimes, lawyers come in with very prepared remarks. You should have a plan and prepared remarks but be flexible. If you find that the justices are all asking about a particular area, we're asking those questions because we're interested. That may be a positive issue in this case. Spend your time answering those questions and not only reading from your list because your list of other issues might not be as important as the issues we're asking about.

Michigan Supreme Court Justice Megan Cavanagh

That was the biggest shock that I had on my first oral argument on the bench. I came in thinking because I knew what it was like to prepare for an oral argument as the attorney going in where you have one case and you know everything there is to know about your case. You have thought about every possible question somebody could ask. You know the facts and even the stuff that's not part of the record but that might be relevant to somebody asking a question and all of these things. You know it is stone cold.

However, coming at it from the bench, it was our call. I was surprised and a little overwhelmed the first time at how much oral argument changed what I thought I knew about the cases. I was so used to being set by the time you get to oral argument. I have learned that yes, you are way more prepared and you understand a lot more than you did at some earlier stage in the case. However, oral argument is not the end of what the court is doing. It is a part and the beginning of formulating what the answer should be or how to resolve some of these questions you may have or things like that.

Ohio Supreme Court Justice Melody Stewart

Members of our bar prepare themselves when they come before us and they recognize the fact that they better be well prepared when they come before us. Not all lawyers are but the overwhelming majority of them are. It almost makes no sense not to be well-prepared. Even if you're a lawyer who doesn't like to stand up and speak in front of people or get nervous coming to court with 1 judge, let alone 7, the best way to help get rid of some of those things is to look at lawyers who have been there come down and sit in the hearing yourself or all of our oral arguments are archived on our website.

You can go back and look at it as an argument. Particularly, if it's an argument with an issue or an area of law that you are going to be arguing or that you're addressing. It’s because not only do you get a feel for how the hearing flows but what the justices are thinking. Sometimes what a particular justice might key in on or hone in on. It's always interesting to me when a lawyer gets up and says to me or one of my colleagues, “As justice so and so stated in State v. So-and-So in opinion,” and we'll quote a rule of law or something that we said. It shows the bench that you've done your homework and you know what you're talking about. It gives you a little more credibility.

The winner of the case should be whoever has the law on her side or his side all the time but those are things that make for a good appellate advocate. The second one I would say is recognizing that you are at an appellate court and the highest level of the appellate court system, as opposed to a trial court where there's a jury. Sometimes trial lawyers argue before us and they're demonstrative. They're talking to us like we're in a jury box.

We want to go, “Counselor, do you recognize who we are?” Not putting on your trial court hat when you're arguing in the appellate court is different. Your time is limited. You can't convince us with your flare and with the motion. That gets me when you bring emotional scenarios before us. “This is a tragic case where my client lost his leg.” Yes, that's tragic but that's not before us. Recognizing that when you're in the appellate court, it's about the law, the standard of review, and the policy, whether there's been legislation in the particular area that's changed it. It's not about appealing to our sensibilities and emotions.

California Court of Appeal Justice Judith Ashmann-Gerst

What we want from the lawyers is a focus on the important issues. I don't want a rehash of your brief. I've read your brief. I want you to tell me what's important and be prepared to answer questions on your whole brief but focus on what you think is important. Tell us where you think the trial judge either was right or wrong and what you want us to do at the very end. Do not just stand there and read an outline. That isn't going to work. We're going to cut you off and ask questions.

California Court of Appeal Justice Adrienne Grover

One of the most important things is to be the expert on your record because that's something where we might want to dig in with you and we might want to clarify something or we might be under a mistaken impression about some aspect of the record. Being the expert on it so that you can either correct us, send us in the right direction, or have the information that we're looking for is extremely helpful.

The other oral argument tip is to try to be conversational with the court. By that, I don't mean jugular or informal but listen to the questions that are being put to you and address that question rather than, “That has to do with one of my canned arguments here. I'm going to answer it this way,” but listen to maybe the nuance of what we're trying to get at. We could be divided about something or wondering about something.

In an oral argument, try to be conversational with the court. Listen closely to the questions that are being put to you and address the nuances they’re trying to get at.

We could be giving you your last opportunity to straighten us out about something or we could be using the question to get to another place in the case or get the benefit of some more nuanced analysis. It’s important to listen to the questions and engage in that conversation with the court. The best advocates are engaged that way. They are enjoying the conversation. It's an interesting exploration of this topic for them. You can hear that they are enjoying the opportunity to engage with us about things and persuade us. That's where the best advocacy comes from.

Former Missouri Supreme Court Chief Justice Ann Covington

In an oral argument, I would add this, because I was focusing essentially on the brief, listen carefully, not only to your opponent but also to the judge's questions. Some lawyers I have seen want so badly to get their points across that they fail to listen carefully to the court's questions and miss opportunities by doing that too. Sometimes judges' minds change in oral arguments. I've seen lawyers miss opportunities to take the bull by the horns and say, “Here's where you're not understanding what I'm trying to say in my brief.”

Listen carefully, not only to your opponent, but also to the judge’s questions.

Chief Justice of the Michigan Supreme Court Elizabeth Clement

The best advocates that I see are the ones that are able to get up and say, “What I hear you asking is this. It seems like we're putting an emphasis on where you're maybe struggling or want more information on this issue.” They hone in on that because we prep for so long. To be in court, whether that's an appellate court or a trial court, you have to be willing and able to pivot and adjust based on what's happening next. Having that flexibility, being prepared enough, having confidence in yourself that you've prepared, and being able to shift is key.

Tennessee Supreme Court Justice Holly Kirby

It's most helpful for lawyers to realize where they are in the process. The whole process from trial to the Supreme Court is a process of distilling a case down to smaller essence. If think about it, a trial lawyer gets a massive information from their client. They assemble all of the evidence and the witnesses into a coherent narrative to tell a story at trial. When it is appealed, you can't appeal everything. The lawyer has to make a decision about what issues to bring to the court of appeals and hopefully, identify a very limited universe of issues.

I usually tell them to limit it to 3 to 4. If I tell them 3, then they'll do 4. Also, to realize the difference between an intermediate appellate court and a Supreme Court. The Supreme Court is very much a policymaking body. They're more in a position to take on issues of first impression and will be looking at how things will play out in different factual situations. Lawyers often are surprised in oral arguments when they're asked about this other factual situation. They'll say, “That’s not our facts your, Honor.”

We know but we're worried about the impact on other cases so we're asking.

We have to think about that. I tell lawyers, for example, in oral arguments, “I've been on a cold bench and a hot bench so you have to have your whole soliloquy prepared in case you don't get questions.” The better result is that it will be a conversation with the justices. I had a lawyer who was a friend who argued in front of us one time. I saw him in church after his argument and he was like, “You didn't even let me talk. You were asking me questions the whole time.”

I said, “Kim, your brief is your opportunity for an uninterrupted soliloquy but oral argument is mine.” I got him straight on that. If things go well, you will get a lot of questions. Know what the judges are thinking and you'll be able to address it directly. Part of the problem that lawyers have is that distilling down requires a lawyer to be confident in her judgment.

For example, for an oral argument, you want to identify the one point you want to get across. Even if you are barraged with questions, you want to get this across. That requires you to screen out other things and make a choice. Even if you're not right, it's important for lawyers to exercise their best judgment and focus on it. Otherwise, they look at it sequentially. “If I'm going through these issues, this one logically should come first.” Forget all that. Go straight at it and to your more important issue.

Oral argument is the most fun and energizing part of the whole process.

I'll go into oral argument thinking, “This is the more important issue,” but when the lawyer leads with, “You need to pay attention to this, Judges,” then I'm going to do that. At oral argument, get not only the dynamic of the lawyer coming to you having distilled the case down. You have the interaction with everybody else and how they're reacting to what the lawyers saying or to what points we're making. It's a very cool process so that I may go into an oral argument thinking one thing and come away thinking something significantly different. I love oral arguments. That is the most fun and energizing part of the whole process.