5 Oral Argument Tips From Judicial Guests of The Portia Project Podcast

As creator and host of the award-winning Portia Project© podcast, which chronicles the storied careers of women judges, lawyers, and leaders from throughout the United States, I have interviewed nearly 100 judges about their careers—and about what kind of advocacy they find effective and helpful in their decisionmaking process. 

Compiled here are five tips for oral argument gathered from those podcast interviews. While most of these tips are from appellate justices, they apply equally to effective advocacy in the trial court as well.

Be prepared. Both for your presentation and the court’s questions. 

Former California Court of Appeal Justice Margaret Grignon, now an appellate advocate herself, says she prepares “unendingly” for argument. Her goal is to have a conversation with the court. “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 … about what their concerns are about the case,” she said. “It’s listening and trying to pay attention to what the justices indicate they are interested in and make sure that’s what you are talking about.”

Focus on the toughest issue you have. And present the arguments a bit differently than you did in your brief.

Ohio Court of Appeals Judge Christine Mayle advises: “Although it’s more comfortable to use your time to nail down … your best arguments, what we want to do during oral argument is to test our theories [and] drill down on [your] weakest points. What has your opponent brought out that makes it hard for you [to win]? Maybe it’s a Supreme Court case that you have to distinguish … or a section of [a] statute…. Use that time at oral argument to help us overcome whatever the biggest hurdle is for us to rule in your favor.” Tennessee Supreme Court Justice Holly Kirby says it this way: “Go straight at it and to your most important issue.” 

In an appellate argument, more so than in a trial court argument, it is important to consider the broader impact on the law that your case may have, and to make the court feel comfortable with that. As former Chief Justice of the Utah Supreme Court Christine Durham notes: “You’ve got to explore the impact of whatever principle you are being asked to articulate on sometimes generations of cases in the same [area of law]. That makes appellate work special, in the sense that you are solving problems … in the [larger] context very often as well as in the individual context.”

For this reason, it is helpful to “not repeat your briefs” and add some new insight, reasoning, or approach to the issues than what already appeared in your brief. As Grignon says: “[T]hey have read your briefs and they know what you have already told them. Unless you have some wonderful new insight that they haven’t heard before, the argument is not very interesting to them.”

Listen and respond to the court’s questions.

As former Chief Justice Durham acknowledges, “A lot of questions from the bench are directed to counsel but they are often meant to surface an issue that another colleague has or will have, and to give a lawyer a chance to address it.” Pay attention to the court’s questions, former Missouri Supreme Court Chief Justice Ann Covington advises: “Listen carefully to the court’s questions …. I have seen lawyers miss opportunities to take the bull by the horns and say ‘Here’s what you’re not understanding about what I am saying in my brief.’”

Indeed, according to Michigan Supreme Court Chief Justice Elizabeth Clement: “The best advocates I see are those who can get up and say, ‘What I hear you asking is this.’ Where you’re putting an emphasis, where you’re maybe struggling or want more information on this issue … they hone in on that.…” 

Listen to the arguments made by opposing counsel. And to the questions the court asks them.

As Tennessee Supreme Court Justice Holly Kirby notes: “At oral argument, you get not only the dynamic of the lawyer coming to you, having distilled the case down, you have the interaction with everyone else [on the panel] and how they’re reacting to what the lawyer’s saying or to what” other judges are saying, as well as what opposing counsel is arguing and how the members of the panel are responding to them. As the advocate, pay attention to this larger picture too.

Recognize where you are in the process and the role oral argument plays in the court’s decisionmaking process.

For the advocate, oral argument is the end of the appellate process—until the court issues its opinion in a case. But as D.C. Circuit Court of Appeals Judge Patricia Millett and Michigan Supreme Court Justice Megan Cavanagh observe, oral argument is not the end; it is midway through the court’s process of decisionmaking. As Cavanagh says: “It is a part of the beginning of formulating what the answer should be or how to resolve some of the questions you have ….It’s part of the process,” not the end of it. After argument, the panel may reach a tentative vote for the first time in a case, and then trade draft opinions and tinker with the opinions’ reasoning.

By maintaining a sense of the court’s perspective on oral argument, an advocate can be more helpful both to the court and her client. 

You can read the companion article, “Brief Writing Tips From Judicial Guests of The Portia Project Podcast,” by clicking here.

M.C. Sungaila is a partner at the Complex Appellate Litigation Group who has briefed or argued more than 175 appeals, and the creator and host of the award-winning Portia Project Podcast. More tips on oral argument can be found in a special podcast episode that will air this month.

This article originally appeared in AmLaw Litigation Daily on December 14, 2023.

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