Oral argument: a purposeful conversation.

While many aspects of law practice are challenging, oral argument is a uniquely nerve-wracking experience. After all, the stakes are high for your client at the appellate stage; moreover, your competence is visibly on display to not only the client but also some of the most esteemed members of the profession sitting on the bench before you.

With all this pressure, it can help to think of "oral argument" as simply a purposeful conversation, a frame that has implications beyond just settling nerves, as examined below.

Purposeful, not scripted.

Every day we convey critical information to our clients, colleagues, and friends, naturally as a matter of course. If we were to script these conversations, they would sound unnatural and stilted, and we would lose all credibility in the process. The same holds true at oral argument: never read your argument or recite it word-for-word from memory, or worse from your brief, as there is nothing credible or engaging about that.

Instead, be prepared to speak extemporaneously from an outline. A good outline can utilize key words and phrases to map exactly where we want the conversation to go. At the same time, it frees us from the dreaded word-for-word recitation, enabling us to do what all confident, credible conversationalists do: look the audience squarely in the eye, gesture appropriately, and remain aware of how the communication is being received, and change course as necessary.

As Supreme Court Chief Justice Rehnquist aptly summarized:

What if you had gotten together [with colleagues]. . . to discuss an important piece of business? Would you read to them from a prepared statement to get your views across? Of course not. Why then should you give up the advantage of eye contact and the openness of direct speech when you are addressing a group of three, five, seven, or nine appellate judges? The answer, it seems to me, is that you should not.

William H. Rehnquist, Oral Advocacy, 27 S. Tex. L. Rev. 289, 301 (1986).

Critically concise.

Careful deliberation will guide the particulars of what you focus on in your conversation with the Court. You can't include everything, as timing won't allow for it. Nor should you want to. While "be brief and be gone" is a horribly harsh cliche, it's not without basis: we appreciate concise people. They demonstrate a respect for our time, and we see them as more confident and credible. Plus, too much information is an invitation for the listener to tune out, and your best points lose impact.

With this in mind, it's helpful to keep one word in mind as you prepare: critical. You can generally assume the Court has read your papers. Don't recite all the facts, highlight only the critical ones. Judge Wallach, formerly of the NY Appellate Division, once put it this way:

"Don't start at the Garden of Eden with the facts. . . even if the judges sit there and quietly endure the tedium... it is not going to help you."

Judge Richard W. Wallach, Some Do’s and Don’ts of Appellate Advocacy, 21 Trial Lawyers Quarterly 17, 19 (1991). 

The same is true in respect of legal arguments. Is there one that disposes of the entire matter? Start there, as it's critical. The brief probably cites 30+ cases, but how many are critical? Share only those.

In short, trust that the briefing papers, painstakingly detailed as they are, will do their job, and focus instead on your job: providing critical emphasis, concisely.

Conservatively conversational.

With whom am I speaking?

Every great conversationalist gives this question some thought. You will want to "know" your judges and the Court itself, and absent actual experience, there are some great resources available to do that research, including traditional sources and newer legal intelligence platforms such as Bloomberg Law. It's time well spent. Indeed, as Justice Rehnquist explained, you are not "presenting to some abstract, platonic embodiment of appellate judges as a class, but to three, five, seven, or nine flesh and blood men and women." Rehnquist, supra at 295.

But while there are hundreds of different appellate bodies, one thing will always be true: you are talking with judges. A conservative approach to the conversation is therefore warranted. That means calmness and composure are the twin guiding principles, and your tone, volume and movement should comport. No shouting. No banging on the table. No wild gestures. While a moderate dose of dynamism is good for engagement, and to demonstrate confidence in your client's position, remain mindful that you are not making a jury summation. In respect of content, conservative conversation means that "jokes" and slang are almost always a bad idea.

Finally comes the matter of questions, the all-important "exchange" in our purposeful conversation. In everyday conversation, "I'll get to that" is usually a fine response. Not here. When the judge asks a question, you respond to it, immediately, full stop. You can return to pressing your points confidently, but always detour with deference first. 

As Justice Peters formerly of the NY Appellate Division once wrote: "We are looking for an answer to the precise question and nothing else. It is not helpful to attempt to skirt the question by answering a different one... and it is truly offensive to ignore the question." Karen K. Peters, The Ten Most Important Things to Remember When Arguing Your Appeal in Intermediate Appellate Court (emphasis added).

Of course, be sure you understand the question first, and ask for clarification as necessary.

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One final point about oral argument.

Good preparation takes time, and you wouldn't be the first to wonder, "does argument really matter?" It's no secret that appellate clerks often complete draft opinions before the argument occurs, and judges enter the courtroom with a view that has been estimated to change only 3-4% of the time in various courts. But that is precisely why the argument matters: the odds are so bad for one side (probably yours, if you are seeking reversal) that the corresponding argument had better be that good.

Against this backdrop of epic challenge, nerves are completely natural; in those doubtful moments, remember, it's just a purposeful conversation, and great conversation can indeed change minds!

Timothy K. Giordano is a former appellate law clerk, active in private practice and the business of law since 2002. He also teaches rhetoric and persuasion at Montclair State University. 2019 All Rights Reserved.