Oral Argument — Common Mistakes:

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.