Throughout this week, I’ve been blogging excerpts from Mayer Brown’s Federal Appellate Practice treatise, and I close with the section on common mistakes at oral argument:
The most common mistakes of technique made by appellate oral advocates are born of lack of preparation, lack of attentiveness to the court, and nervousness.
First of all, although the point is obvious, it is safest to address judges as “your Honor,” unless you are entirely confident that you have the judge’s name right. Trying to connect personally is a good idea, but only if you are absolutely sure that you will not mix up the judges. Even in courts that have nameplates in front of the judges’ bench, mistakes can happen. Although not every judge who is called by the wrong name will take umbrage, counsel is likely to realize the blunder, perhaps when one of the members of the panel corrects the misnomer — and that realization is bound to cause counsel to become distracted, flustered, or embarrassed. If the client is present, this kind of mistake also undermines the client’s confidence in the advocate.
Small physical manifestations of nervousness can appear unprofessional and distract the court from counsel’s argument. Unnecessary gestures, shuffling of papers, and fidgeting at the lectern should be kept to a minimum. Hands should be kept at counsel’s side or on the lectern. This will help create an appearance of earnestness and attentiveness. Crossing one’s arms or cocking one’s body to the side, by contrast, risks conveying a sense of combativeness. Rehearsals with video will help counsel to avoid these mistakes.
Counsel should tab reference material so as to avoid long delays while looking for page references. It is acceptable to pause for a sip of water, if you experience dry mouth, but do so carefully, lest the sip produce coughing, sputtering, or spraying. There is a technique that some experienced oral advocates use to prevent dry mouth and to avoid (or minimize) the need to quaff water — which can have its own complications. Instead of depending on water, use hard candy (like Lifesavers) that stimulate moistness in the mouth. It is possible to pop a hard candy into your mouth discreetly while waiting to be called to counsel table and even while sitting there. Be sure, however, to swallow the candy before being called to the lectern.
Poor oratorical form is another common blunder, one that takes many shapes. Some speakers, desperate to make a point, resort to hyperbole, invective, or overstatement of fact or law — all of which may result in a loss of credibility with the judges. Others read brilliant passages from their brief, but never engage the judges’ recurring — and outcome-determinative — questions. The late Chief Justice Rehnquist famously noted four “species” of poor advocates: the “lector,” who reads the argument; the “debating champion,” who knows the case and its theory very well but does not listen carefully to questions and carefully answer them; “Casey Jones,” who knows the case but races ahead, not bothering to “pick up passengers along the way”; and the “spellbinder,” who substitutes rhetoric for careful analysis.
Finally, too many lawyers lose sight of their role as advocates before appellate judges. The forum is an appellate court, not a trial court. Arguments should not be pitched as if the judges were jurors: eschew emotional rhetoric in favor of intellectual debate. Judges are especially likely to take offense, or tune out, if they feel you are giving what is in essence a jury argument.
One important point of which many advocates lose sight is that the judges will have spent far less time than you studying your case. Accordingly, you should not assume that they are versed in every subtle nuance and factual wrinkle. You should listen to their comments carefully with an ear to whether they have lost track of what you are saying, which can occur when you assume familiarity with factual or legal details that the judges may not in fact possess.
Along similar lines, keep in mind that appellate judges are ordinarily generalists who may lack detailed knowledge of specialized areas of the law. This is a particular risk for counsel who practice regularly in a highly specialized area such as tax, securities, or ERISA, to name just a few. Take care to avoid jargon or the use of technical terms or acronyms that may be everyday fare for specialists in the area but a mystery to those not steeped in them. A related pitfall involves technically complex subjects such as computer technology and scientific or engineering details that may underlie the testimony of expert witnesses. Your presentation should be attuned to the panel’s level of comprehension, and you should supply any necessary exposition if the judges do not appear to be following the point. If the subject matter of the case involves any of these risks, remain sensitive to the danger of losing your audience.
Finally, counsel should remember to display the proper respect for the court, the trial judge, and opposing counsel. Judges especially dislike ad hominem attacks directed against the trial judge or opposing counsel. You may think that the trial judge is a hopeless bumbler or was far from impartial, or at least behaved that way in ruling against your client. But the members of the panel may have lunch with that judicial colleague every day, or belong to the same golf club. Insulting a friend provokes a defensive reaction, which is the last thing you want to do.
A similar caveat applies to the temptation to attack opposing counsel by accusing your opponent of “misleading the court” or “misrepresenting the record.” Judges do not like incivility. They do not like to see lawsuits turn into a personal battle between the lawyers instead of a controversy between their clients. And they do not want to be forced to choose sides by deciding which lawyer is being more candid and forthcoming in advocating the client’s cause. Stay on the high road, no matter how tempting it may be to strike a hard blow.
While the debate with the bench may be vigorous, it should always be respectful, as an alienated judge will almost certainly not be open to persuasion regarding the correctness of your position.