About a week ago, I noticed that I was fast approaching my 500th post on Appellate Strategist. The occasion seemed to call for something different, so I started pondering what I might want to write about.
As it turns out, this comes at a time of transition over at Appellate Strategist‘s sister blog, the Illinois Supreme Court Review. This morning, we’re announcing the beginning of the second phase of our empirical study of the Illinois Supreme Court’s decision making – a data analytic deep dive into the Court’s oral arguments in civil cases between January 1, 2008 and December 31, 2014.
For purposes of developing this addition to our empirical database on the Court’s work, over the past two years I reviewed the videotapes of every oral argument at the Court in a civil case from 2008 through 2014, charting the patterns of the Justices’ questions. So today for Post No. 500, a top fifteen list of do’s and don’ts derived from the past seven years’ worth of oral arguments at the Court.
- May It Please the Court. Yes, you have to start your argument with these words. In 233 oral arguments, the total number of advocates I can recall not beginning this way – zero. That’s not a streak you want to be the first lawyer to break, particularly since some appellate judges and justices have suggested that it’s mildly disconcerting when a lawyer doesn’t follow the tradition. Besides, there’s a lot to be said for a tradition that connects our profession back to its common law foundations. Bryan Garner points out that the phrase appears in Ben Jonson’s The Poetaster in 1601 and Volpone in 1606, but there’s also something very close to the traditional phrase in the courtroom scene at Act IV, Scene 1 of Merchant of Venice, which was written three to five years before The Poetaster. I suspect that Antonio’s “Ready, so please your grace” in Merchant is probably a clue to the origins of the phrase as a gesture of respect from the days when the king or a local duke presided over the Court. By the end of the sixteenth century, the phrase was obviously so common that Jonson and Shakespeare – neither one an attorney – knew to include it in a courtroom scene.
- Introduce Yourself, and the Identify the Party you Represent. The second thing you say, right after “May it Please the Court.” A lot of people forget to do it, and you don’t need to have your momentum broken in the first moments of your argument by such an unforced error.
- Check Out the Accoustics. If you’re not familiar with the Supreme Court’s courtroom, go for the beginning of the Call of the Docket your case is on – if not the day before. While sitting in the gallery, practice identifying the Justice speaking and where on the bench he or she is located with your eyes closed. Taking a moment to identify the questioner is an embarrassment you don’t need (and it’s happened quite a number of times in the past seven years).
- No Visual Aids. There’s some disagreement about this one among commentators on oral argument, but I say no easels with charts, blown-up photographs or maps in the appellate courts ever. Patent cases may be an exception, but I think visual aids are reminiscent of jury closing arguments – not the impression you want to give in an appellate court.
- Stay behind the microphone. The Court records the oral arguments for good reason, so stay behind the microphone. No wandering around during your argument, whether to move closer to a Justice asking a question, to retrieve a file or any other reason.
- Answer questions immediately, and that includes the hypotheticals. Your sole function at oral argument is to answer the Court’s questions. When you get a question, answer it immediately. As John W. Davis, the greatest appellate advocate of the twentieth century, said in 1940: “If you value your argumentative life do not evade or shuffle or postpone, no matter how embarrassing the question may be or how much it interrupts the thread of your argument.” And I’ve heard lawyers try all kinds of things to dodge a hypothetical. You can’t. A large part of your preparation should be pondering every possible hypothetical the Court could pose during oral argument, and you’re there to assist the Court in working through the implications of every possible decision.
- Be confident, but not casual. You want to give the impression that you’re comfortable in what you’re doing, but that doesn’t mean casual, which is the opposite of professional. I’ve heard counsel in both Illinois and California refer to the state Supreme Court as “you guys,” and that’s just wrong on so many levels. At every moment, you should be striving for confident, respectful and deferential.
- Don’t read it. If you have to read your entire argument, you’ll have a fair amount of company – it happens frequently at the Court. But avoid it if you possibly can – counsel who don’t are far more impressive than those who do. And remember, in some appellate courts, reading the argument is a very big no-no.
- Walking to the lectern – not empty-handed, but that doesn’t mean the whole file. Many appellate lawyers speak with reverence and awe of appellate advocates who deliver entire arguments without so much as a single page of notes. I’m not one of those who recommend the practice. While giving an impression of confidence is good, over-confidence is not. But that doesn’t mean you should take the entire case file to the lectern either – it gives the impression of being ill-prepared.
- Avoid noting that a member of the panel wrote an opinion you’re relying on. At best, it comes off sounding like flattery. As Chief Justice John Roberts wrote of his experiences as a member of the U.S. Supreme Court bar, “Most advocates there have found that it is not a worthwhile expenditure of their time to debate with the authors about what their opinions mean.”
- Avoid telling the Court it’s your first time. Twenty minutes goes by far more quickly than you think it will. Avoid any expression that simply fills time without moving your case forward.
- Avoid personalizing your argument. Using subjective expressions like “I think” and “I believe” in your argument makes it sound as if your position is merely a matter of opinion.
- Never say “I wasn’t counsel below.” If you’re asked about an unfortunate detail of the litigation below – or far worse, a detail you can’t remember in the pressure of the moment – don’t try the “I wasn’t counsel below” dodge. It doesn’t matter, and a number of appellate judges and justices have publicly said that they find it annoying.
- No humor ever. Using humor in an oral argument has been compared to juggling hand grenades – never a wise move. You’re there to assist the Court, not to entertain them.
- Put your points in bullets up front. Within sixty seconds of beginning, tell the panel, in one sentence per point, all the reasons you’re going to discuss why they should affirm or reverse. Because if the bench is hot enough, those may be the only clear sixty seconds you get.