MAY IT PLEASE THE COURT - OR NOT: APPELLATE JUDGES' PREFERENCES AND PET PEEVES ABOUT ORAL ARGUMENT.

• Author: McGaughey, Margaret D.

There was a time when the only way to plead a case was orally. King Solomon decided between two women claiming to be the mother of the same baby based only on their oral representations, made without briefs (and, for that matter, without lawyers). (1) In the early 1800s, cases in the United States Supreme Court required no briefs, and oral arguments occasionally lasted as long as ten days. (2) By the twenty-first century, only one fifth of cases in the federal courts of appeals are decided on the basis of both briefs and oral argument. (3) The rest are resolved on the pleadings alone. Even those appeals that are heard orally are given only thirty minutes per side in the Supreme Court (4) and fifteen per side, or even less, in the federal courts of appeals and state supreme courts. (5)

With so little time to make their case, but so much at stake, what should lawyers do during oral argument to capture the judges' attention?

Lawyers have frequently written on this topic. Helpful to fellow advocates as such works may be, what matters is less what lawyers think about oral argument than what resonates with judges.

This article is the product of in-person interviews with nineteen state and federal appellate judges to ascertain what they find to be effective at oral argument and what they deem counter-productive or even annoying. (6) Ten of the interviewed jurists are active or senior members of the United States Court of Appeals for the First Circuit. (7) Eight are current or former justices of the highest courts of Maine, (8) Massachusetts (9), New Hampshire, (10) and Rhode Island. (11) One jurist was formerly Chief Judge of the First Circuit and now is an Associate Justice of the Supreme Court. (12)

With respect to some aspects of oral argument, the judges were in complete accord. Regarding others, there were significant differences of opinion. The objective of this article is to identify the points of agreement and disagreement so that oral advocates can avoid what judges see as common pitfalls and be aware of differences from court to court and judge to judge that will inform their oral advocacy.

1. PURPOSE AND SIGNIFICANCE OF ORAL ARGUMENT

   The judges all agreed that the most important part of the appellate process is not oral argument, but the briefs. On paper, lawyers can carefully shape their legal theories, chose their words precisely, incorporate accurate supporting record references, edit and revise repeatedly, and bring the insights of colleagues to bear on the final product. Oral arguments, by contrast, are one-person shows, more spontaneous, occasionally unpredictable, and often lacking the careful scripting that attends the briefs.

   There was no unanimity among the judges, however, regarding the significance, or even the utility of oral argument. The cost to litigants can be significant, for oral argument often entails travel, not to mention the legal fees associated with preparing for and appearing in the appellate court. There is also a cost to judges, who must spend their own and their law clerks' time getting ready for and hearing argument when they could be writing opinions instead.

   Whether oral argument should be ordered less frequently was the subject of much debate among the judges. First Circuit Judge Torruella suggests that oral argument is a carryover from the English legal system, where briefs are literally brief, but oral argument can last hours or even days. Many judges share his view that too many cases are set for argument, and the few truly complex appeals where oral argument will assist in the decisionmaking process are given too little time. Other judges, however, favor granting oral argument liberally because even if the outcome of a case appears clear, it can be difficult to predict what will arise during argument.

   First Circuit Chief Judge Howard has come to believe that because his is a "paper court" and its members are very well prepared, "the federal circuit courts could get by without oral argument, but I think we would make a lot of mistakes." He finds educational value in having judges face the lawyers who have thought about the cases longer than the judges have and are willing to probe the limits of a possible ruling and what its impact would be. Whereas when he came to the First Circuit in 2002, forty percent of cases were set for argument, after a short-term increase in criminal filings, the number has settled at thirty-five percent. One concern Chief Judge Howard has about the declining number of oral arguments is institutional: that there are fewer opportunities for lawyers to appear before appellate courts and gain the experience needed to improve their advocacy. He favors adding a case or two to each argument list simply to allow lawyers--particularly young lawyers--to develop their skills.

   The consensus of the judges was that although oral argument changes the outcome of an appeal only between ten and twenty percent of the time, it alters the reasoning more frequently. For Justice Breyer, for example, oral argument at the Supreme Court changes the result five percent of the time, but can refocus the reasoning in thirty percent of cases. Oral argument can shed light on issues that have been inadequately addressed in the briefing, for example procedural bars or mootness. Maine Chief Justice Saufley's view is that a good advocate whose brief has not quite captured the court's attention can bring the case to life at oral argument. First Circuit Judge Lipez tells students--and by extension lawyers--that they should always assume that oral argument will make a difference because "often enough, it does."

   Even the non-believers conceded that oral argument serves a public function. Judging is a relatively solitary pursuit, and what judges do can appear to the general public to be largely a mystery. Courts issue opinions that have significant impact not only on individuals, but on the nation as a whole, yet how they arrive at those opinions seems almost clandestine. In addition, the media does not always accurately portray the courts. In all but the most sensitive cases, however, oral argument is open to the public and this allows citizens a window into the appellate process and the judges' thinking. It also gives the litigants and their lawyers the sense that their arguments have been considered and they have literally had their day in court.

   Judges offered varying insights into what, apart from winning, an advocate's purpose at oral argument should be. Everyone agreed that a principal function is to answer questions and thereby educate the court. First Circuit Judge Lynch summarizes the view of a number of jurists that an exceptional advocate will deliver an oral argument that amounts to an outline of how an opinion in that lawyer's favor would read. According to First Circuit Judge Boudin, lawyers should never present the extreme version of their position, but should guide judges to a result that will appear to both the court and the general public to be reasonable and legitimate. New Hampshire's Chief Justice Lynn describes an advocate's objective as persuading the court not only that a given position is correct, but also that it will lead to a proper development of the law and will not produce an outlier that the court will have to deal with in the future. Many appellate judges, five of the seven justices of the Massachusetts Supreme Judicial Court (SJC) among them, have previously sat on the trial bench, which makes them especially attentive to giving trial judges clear guidance. Those judges' trial experience makes them want to explore at oral argument the breadth of an opinion and any caveats that should be attached.

   For some judges, oral argument is an opportunity to learn their colleagues' perspectives on a case. As a matter of court culture, many judges do not confer with their colleagues in advance of oral argument. A thorough discussion among the judges comes only in the semble, the conference of judges, which in most courts is held immediately after a day's argument session is completed. (13) Questions to the lawyer during oral argument may thus be for the purpose of teasing out another judge's leanings or using the lawyer's answers as the basis for the semble discussion. Communicating with other jurists through questions to the lawyers is especially common at the Supreme Court, where, by virtue of having voted to grant or deny certiorari, the Justices are already aware of their colleagues' tentative views. The same is true of en banc hearings in the federal courts of appeals, where a majority of judges in active service who are not otherwise disqualified will have voted to hear the case. (14)

   Although different jurists put it different ways, they all agreed that there are three basic ingredients of an effective oral argument:

   * preparing;

   * listening; and

   * answering the question when it is asked.

2. PREPARATION

   There was no dispute among the judges that the best oral advocates know their cases better than anyone else in the world. That includes opposing counsel and the judges themselves. In the state courts, it is typical forjudges to hear twenty to twenty-four appeals in a one-month term. Panels of the First Circuit generally hear twenty-four cases per month, or more when there is a two-week session. In the Supreme Court, up to twenty-four cases can be heard in each of the two-week terms held between October and June. The sheer number of cases means that a well-prepared advocate can be of considerable assistance to any appellate court.

   1. Judges' Preparation

      Because judges have differing methods of preparing for argument, a lawyer expecting to appear in an unfamiliar court may want to research the backgrounds and opinions of the jurists who will decide their case. It may also be useful to contact experienced advocates in that jurisdiction or former law clerks to gain insight into how the judges ready themselves for argument. (15) Although the...