Ten Lessons About Appellate Oral Argument
| Pages | 218 |
| Publication year | 2021 |
71 CBJ 218. Ten Lessons About Appellate Oral Argument
At a CBA Conference on Federal Appellate Practice on April 17, 1996
I'm the token "ivory tower" on the panel, which reminds me of the story about the man whose great accomplishment was surviving the Johnstown Flood of 1878. He goes up to heaven, where he's asked to be on a continuing education panel about the great floods of the past. Honored, he agrees, after which Saint Peter says, "Before you speak, let me tell you that Noah is also going to be on the panel."
Our Noah, Mark Kravitz, has written a wonderful paper about oral argument. It is printed at the first part of Volume Two of the materials for this conference, and I incorporate it into my remarks by reference. As an academic, what I can best contribute is a discussion of the differences between theory and practice. Let me contrast what you're told - i.e., the conventional wisdom - and what my actual experience in arguing before the Second Circuit has been like. I will try to summarize these differences in ten lessons that run chronologically through the oral argument preparation process.
First: a general approach to the argument. When I was in law school I was told, as conventional wisdom, that it's your last chance to educate the judges about the case. What I have found, in fact, is that the oral argument is really the last chance to educate yourself about the case. As the case unfolds, it becomes more and more complex, and you see more intricacies and pitfalls. Never does your argument seem more complicated and weak than the night before you file your brief, when you see with stunning clarity every flaw in your position. Then you take a break and you come back to prepare for the oral argument. At this point, what is most important is to try to step away. This poses a particular disadvantage for someone who has tried a case, then argues the appeal. Sometimes you'll see an appellate argument where the lawyer at trial tries strenuously to argue that some particular fact or bit of cross-examination that he or she unearthed in the trial
court is of critical importance. You have to take the opportunity to step away from the case, to try to distill it and simplify it in your own mind. What in the case as it has now evolved, makes it compelling for your side? What invariably happens is that some more simple version of your argument will emerge. It is this distillation, this simplification of the issues, that you want to present to the court in the oral argument.
This leads me to my second lesson: preparation. What you're told: master everything; read everything; read every case; make sure you're completely prepared. Of course this is true. But in fact I would urge that you focus less on blanket coverage than on targeted preparation. When I tell students to study for an exam that's going to be held in a couple of days, I know they are in trouble when the night before the exam ' they're still in the library reading every last case in the case book. This is not the optimum use of their time at this crucial moment. In fact, instead of running around chasing down peripheral issues, they should be focusing on organizing the material, and then preparing to deliver it in a targeted way at the argument.
What this means in oral argument is two things: first, structuring the presentation in your mind - the three or four points that have got to get across. And second, even if it sounds trivial, organizing the materials that you will bring to the podium, so that they'll be right at your fingertips. What I try to have is a notebook, with a one-page outline of what I'm going to say on one side, and on the other side a list of key things that I might be asked about at the argument: for example, a list of citations, key cites to the record, quotes from key cases, and other materials. Behind those two sheets I have a fuller outline, which lays out the same points in much more detail. As with an exam, the...
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