§ 15.3 The Substance of Oral Argument—Effective Appellate Advocacy

• Jurisdiction: Washington

§15.3 THE SUBSTANCE OF ORAL ARGUMENT— EFFECTIVE APPELLATE ADVOCACY

Beyond the Rules of Appellate Procedure, there is much to know about effective oral argument. The following guidance is based on advice from justices of the U.S. Supreme Court, judges, and sterling oral advocates, and on the authors' own experience.

(1) Introduction

The goal of oral argument, like all advocacy, is to win your client's case. On appeal, this means counsel wants oral argument to influence the appellate panel's discussion of the case in conference. At its best, oral argument is a rapid, condensed conversation between counsel and the appellate panel on how to decide the appeal fairly.

To make this conversation meaningful, counsel must do many things well, simultaneously. First, counsel must be prepared. If the panel senses counsel does not understand the case or the law, the judges will disengage and wait for the argument to end. Second, counsel must be sincere. A meaningful conversation requires all to participate in good faith. If the panel perceives insincerity or cynicism, the judges will give counsel's arguments little weight. Finally, counsel must be credible. If the panel cannot trust the advocate, even a compelling argument may fall on deaf ears.

The following sections provide suggestions on how counsel can participate fully in oral argument.

(2) Do not waive argument

If the court sets a case for oral argument, counsel should not waive it. Although RAP 11.4(j) allows counsel to waive oral argument, this would be a mistake. Judges and appellate advocates are united in this sentiment. See generally David R. Cleveland & Steven Wisotsky, The Decline of Oral Argument in the Federal Courts of Appeals: A Modest Proposal for Reform, 13 J. APP. PRAC. & PROCESS 119, 144 (Spring 2012).

(3) Ask for and use extra time only if you need it

Generally, appellant is more concerned with getting extra time than is respondent. Appellant is fighting the uphill battle for reversal. However, there are cases in which respondent may require additional time because of the complexity of the response to appellant's arguments, or because of a cross appeal.

You should exercise discretion in requesting extra time for oral argument. If your case may be argued within the time ordinarily allowed, do not ask for extra time. Appellate court judges who have to pay close attention to many cases over a period of several hours appreciate an effective presentation made in as short a time as is reasonably practical. This also means knowing when to sit down. Just because the court has scheduled extra time does not mean counsel needs to fill it. Like a good cross examiner, a good oral advocate knows when he or she has made the point.

(4) Be yourself

Above all else, be yourself in your presentation. Do not try to emulate another person whose arguments have impressed you. It will not work: you will come across as insincere, and that will be devastating to your case.

Do not try to change your voice. Some of the most able advocates have terrible voices. What they do have is the ability to project themselves and their points in a sincere manner with the strength of internal moral conviction. That is not a characteristic of voice, but a characteristic of attitude.

You can, however, learn some things to assist in your presentation without diminishing your own personality and style. For example, you can remember to speak loudly enough to be heard. Some voices carry better than others, and some courtrooms have better acoustics than others. Your responsibility is to know how well your voice carries and to know the acoustics of where you will be making your argument. Then adjust the volume of your voice accordingly. No judge should be required to strain to listen to your argument.

You should also learn to use the most effective attention getter— silence. Nothing attracts the attention of the court more than a well-placed, brief period of silence. Even a judge ready to nod off will come alive to try to find out why counsel is stopping in the middle of his or her presentation. Of course, the pause should be placed at a proper place for emphasis. Used correctly, it is a far more effective attention getter than raising your voice ever will be.

You may also develop some variation in your delivery without changing the way you speak. A good writer does this by varying the length of sentences. You can do the same when speaking. Brief pauses at what would ordinarily be paragraphs in written material are also helpful in providing a proper varied pace to your presentation. When dealing with lengthy material, give the court a summary of what you will say so the judges may more readily follow your argument.

An effective delivery is almost a certainty if you are firmly convinced of the rightness of the cause of your client. In other words, the first person a lawyer must convince is his- or herself. A good advocate exudes a sense of moral conviction that carries the court to the proper result. As one of the great United States Supreme Court advocates puts it:

It is, I am convinced, essential to effective advocacy that the advocate have, before he gets up, an abiding inner conviction of the justice of his cause. How he acquires that feeling—whether he starts with it or generates it in the process of preparation—is not really important. But if he is going to carry conviction to his listeners, he must first carry conviction within himself.

Frederick Bernays Wiener, EFFECTIVE APPELLATE ADVOCACY 231 (ABA rev. ed. 2004).

(5) Give the court something different

Give the court something different in your oral argument. Do not simply repeat presentations and arguments already made in your brief. Although you cannot bring up something totally new in oral argument, you can and should develop an approach or emphasis different from that which was presented in your brief.

Oral argument is frequently given a long time after the briefs have been prepared. When rereading the briefs before oral argument, you should consciously look for something you wish you had stated differently or emphasized in a different manner. This exercise can enable you to tailor your oral argument to become far more effective than merely repeating the material in the same manner as presented in your brief.

(6) Prepare thoroughly

As in every other facet of the practice of law, thorough preparation is the key to success. Preparing for an oral argument requires you to know the record and the court rules, reread the briefs, and be familiar with current authorities.

(a) Know the record

The record on appeal is the clerks' papers and the verbatim report of proceedings. You must know them backwards and forwards. Knowledge of the record is at least as important in preparing for oral argument as it is in preparing the brief. Misstatements during oral argument that are the result of superficial preparation will undermine your credibility. The result can be devastating: "I have seen lawyers of reputation utterly demolished in a courtroom when they went freewheeling away from a record they obviously had not read, and were then caught up short by opposing counsel, who knew it inside out." Wiener, at 177.

Knowing the record when you wrote the brief several months earlier does not sufficiently prepare counsel for the oral argument. Counsel must review relevant clerk's papers and the summary of the verbatim report of proceedings so that the record is fresh in counsel's mind the day of argument. You may not rely on what others have told you about the record. To do so is to invite criticism and loss of respect in future cases.

(b) Know the court rules

Experienced counsel reread critical court rules before appearing in court. For the inexperienced appellate advocate, review of the relevant portions of the Rules of Appellate Procedure is a must. If appearing before a particular division of the Court of Appeals for the first time, you should learn the court's local practices, if any. A call to the clerk or to an attorney more familiar with the court may provide you with that information.

(c) Study the briefs

A day or two before the oral argument, you should study all of the briefs carefully and reread all important cases cited in the briefs.

(d) Check the most recent authorities

Every appellate judge has law clerks who check recent opinions for relevant case law. You should check for authorities that have been decided or written since your last brief. A computerized search a few days in advance of oral argument is a very good way to become current. If you discover directly relevant new authority, you should file a statement of additional authorities, without argument. RAP 10.8. See Chapter 14 of this deskbook.

Collateral reading surrounding the issues in your case is also very helpful. If nothing else, it can provide a reservoir of thought and a line of vocabulary to supplement your mental processes.

(7) Know the court

The specific objective of an oral argument is to persuade. And a critical aspect of persuasion is knowing your audience. This means you should learn about the backgrounds of the judges on your panel, as well as the opinions they have authored in the relevant area. See §15.2(7). You must also keep in mind the level of the appellate court before which you are arguing because the institutional roles and functions of each court are different.

This does not mean that you should not argue what the law "ought to be" to the Court of Appeals. It does mean, however, that if a decision of the Washington Supreme Court is standing squarely in your path, an argument distinguishing the Supreme Court's decision from your case is more prudent than asking the Court of Appeals to overrule the Supreme Court on policy grounds, although such arguments are not without precedent. See, e.g., Christianson v. Fayette R. Plumb, Inc., 7 Wn. App. 309, 499 P.2d 72, review...