Amicus Briefs -- Why File Them?
My colleagues at Mayer Brown LLP have come out with a superb treatise on Federal Appellate Practice. Naturally, I'm biased in this evaluation; but I think it's broadly agreed that Mayer's appellate practice is at least one of the very top in the nation, and they have a lot of experience to pass on. Judge Alex Kozinski agrees in his blurb for the book, calling it "a guide that every appellate lawyer should read — and that every client should expect to see on his lawyer's shelf."
I thought it would be worthwhile to blog some excerpts from the treatise this week, chiefly about amicus briefs and about oral arguments. These aren't necessarily the most important parts of federal appellate practice, but I have to admit that many important parts are not necessarily the most exciting to read about, unless you actually need them for a brief you're working on. So I tried to compromise by finding something generally interesting yet still relatively useful.
Today, I start with a question that has sometimes arisen in discussions here: Why should anyone file an amicus brief, and how should people decide whether to spend their time and money doing it? Here's the discussion, from chapter 12.2 of Federal Appellate Practice (some paragraph breaks added):
There are many different types of amicus briefs that persons or organizations want to submit to a court of appeals. An amicus sometimes wants to file a brief because it lacks confidence in the party’s ability to address the core issues in the case accurately and competently. In that circumstance, an amicus brief is similar to a party’s brief, addressing the same issues as the party and advancing essentially the same points, although it may not include some of the required components of a party’s brief (for example, a statement of the case and, in many instances, a statement of the facts).
Another type of amicus brief is filed simply “to enable the officers of trade associations to show their members that they are on the ball.” In that circumstance, as Justice Scalia has put it with characteristic bluntness, “it really does not matter what the amicus brief says.”
Ideally, however, an amicus will attempt to say something that is of use to the court and different from what the party says. Amicus briefs of this type commonly fall into one of four categories.
First, there is an infinite variety of circumstances in which an amicus brief can provide extra-record factual information that may be of assistance to the court in understanding the background for the issues. An amicus brief can collect relevant facts or data that do not appear in the parties’ briefs or in the record. This kind of brief enlarges the factual context in which the court will resolve the issues, beyond the record made before the trial court or administrative agency.
For example, an amicus brief might provide information about religious practices in a free exercise case, a university’s admissions program in an equal protection case, a tribe’s customs in a case involving Indian property, or endangered species in an environmental case. For an amicus brief of that type to be given weight by the court, “the nonrecord facts relied upon should have the ring of truth on their face”; an amicus risks losing credibility “if it goes too far in setting forth nonrecord material as indisputably true.” In addition to providing factual information of which the amicus has special knowledge, amicus briefs may collect relevant facts or data that are publicly available — for example, the legal rules or procedures that govern in different jurisdictions.
Second, an amicus brief can provide the views of experts on an issue with which the court will have to grapple in deciding the question presented. Such a brief “can present information that may help clarify the issues in much the same way that expert testimony assists courts to make a more fully informed decision.” For example, an amicus brief may provide the views of legal historians in a case involving a constitutional provision whose interpretation is likely to turn on historical practice or the views of economists in a case involving an antitrust issue whose resolution is likely to turn on economic theory.
In cases of that type, the parties themselves are unlikely to possess the requisite expertise; generalist judges are likely to benefit from the expertise of the amicus; and the judges are more likely to find the views advanced credible than if they had been set forth by the (nonexpert) party whom the amicus is supporting. Some have argued, however, that judges are too willing to find this type of submission credible, because most authors of amicus briefs are guided, not by “the scientific norms of neutrality and objectivity,” but by “the ideology of advocacy.”
Third, an amicus brief can explain the practical effects of a particular outcome on individuals or groups not before the court. For example, an amicus brief may explain how the decision in a school case will affect student achievement, how the decision in an environmental case will affect water distribution, how the decision in a tax case will affect a certain category of taxpayers, or how the decision in an international-trade case will affect a domestic industry.
Courts often are influenced by the practical consequences of adopting one or another of the legal rules under consideration. That is particularly true in “highly technical” cases in which decisions by generalist judges may have “a tremendous impact on people and institutions in the real world.” It is also true in nontechnical cases in which there is no clear constitutional or statutory text that directly answers the question presented and judges thus have more leeway in taking practical considerations into account.
Fourth, an amicus brief can suggest an alternative legal ground for deciding the case. The alternative ground may be narrower. For example, while the party may want to achieve a big, symbolic victory by having a statute declared unconstitutional, the amicus may be able to persuade the court that the party should prevail because the statute, even if constitutional, does not reach the conduct at issue. The alternative ground may be broader. For example, while the party may be seeking to distinguish the decision on which the district court or agency relied, the amicus may believe that there is no plausible basis for distinguishing it and that the only hope for success is to argue that the decision should be overruled. Or the alternative ground may simply be different. For example, the amicus may have what it considers to be a better argument for obtaining the same relief.
In some cases an amicus will advance an alternative argument because it believes that the argument has a better chance of success; in some cases it will do so because its interests would be better served if the court adopted the amicus’s own legal theory rather than the party’s. If the amicus is supporting the appellant or petitioner and the alternative argument was not raised below, it may not be feasible for the amicus to raise the argument, because a court of appeals generally will not reverse a judgment on a ground not raised below. If the amicus is supporting the appellee or respondent, however, the party’s failure to raise the argument below ordinarily will not be an obstacle, because a court of appeals can generally affirm a judgment on any ground that has a basis in the law and the record.
One other type of amicus brief bears mention: a brief filed by the government, federal or state, or a government agency as amicus curiae. This type of brief does not have to fit within one of the four categories described above. The government is not an ordinary litigant, and its goal, at least as an ideal, is not to win cases but to ensure that the law is correctly interpreted and that justice is done. For that reason alone, a brief that merely sets forth the government’s views on a particular issue is likely to be deemed helpful by a court, especially when the brief is filed by the United States. That is why, as discussed in the following section, the Federal Rules of Appellate Procedure extend to the federal and state governments the right to submit amicus briefs. A government amicus brief, therefore, may provide powerful support for a party, even if the brief merely endorses the position that the party has staked out.
Of course, an amicus brief filed by the government may also fit within one of the categories described above. A government or government agency may have unique access to relevant facts or data; it may have expertise developed through administering a particular law; it may be able to explain the practical consequences of adopting a particular legal rule (for example, on the foreign-policy interests of the United States); or it may wish to offer an alternative basis for deciding the case before the court.
Amicus Briefs Supporting Petitions for Discretionary Review:
I continue my blogging of some excerpts from Mayer Brown's Federal Appellate Practice treatise. Today's item is also about amicus briefs, and in particular amicus briefs supporting petitions for discretionary review (such as petitions for certiorari) rather than amicus briefs on the merits:
In the Supreme Court, amicus briefs likely have a greater impact at the petition stage than at the merits stage. A recent study found that a “paid” (as opposed to in forma pauperis) certiorari petition’s chances of being granted rose from 2 percent with no amicus support, to approximately 20 percent with the support of one amicus, to more than 50 percent with the support of at least four amici. There is no direct counterpart to the certiorari stage in courts of appeals, whose jurisdiction is for the most part mandatory, but there is an obvious indirect counterpart: the stage at which a party petitions for hearing or rehearing en banc. Just as the Supreme Court exercises discretion in deciding whether to grant certiorari and hear a case on the merits, an en banc court of appeals exercises discretion in deciding whether to grant hearing or rehearing en banc and allow the case to be heard or reheard by the entire court.
The exercise of that discretion is guided by similar considerations in each instance. One such consideration is the importance of the question presented. Because amici can “communicate the importance of the case by their very presence,” and can communicate it even more effectively by filing persuasive briefs, there is reason to think that amicus briefs will significantly increase the likelihood of a grant of hearing or rehearing en banc in a court of appeals.
In fact, however, amicus filings supporting an en banc petition “are apparently rare.” There are likely a number of reasons for this. First, by local rule, some circuits restrict or prohibit unsolicited amicus filings at the en banc petition stage. Second, a petition for rehearing en banc must ordinarily be filed within 14 days of the entry of judgment, and that time frame may effectively preclude amicus participation in many cases. Third, a potential amicus may not wish to invest the necessary resources if the circuit that would hear or rehear the case en banc is one to which the potential amicus has little or no connection and thus one whose decision will have relatively little effect on its interests.
When those limiting circumstances are not present, however, filing an amicus brief in support of en banc consideration may turn out to be a wise investment of resources. That is particularly so because one can never count on further review by the Supreme Court, which in recent years has granted certiorari in fewer than 80 cases per term. One should never (or almost never) file an amicus brief in opposition to an en banc petition, however, because it will have the counterproductive effect of making the case appear more important than it otherwise would.
What is true of en banc petitions is equally true of other requests for discretionary review in a court of appeals. See generally Chapter 2, discussing appeals within the discretion of the court of appeals. Apart from its discretion to hear or rehear any case en banc, there are three types of interlocutory orders over which a court of appeals has discretionary jurisdiction: a grant or denial of class certification; a grant or denial of a motion to remand a class action to the state court from which it was removed; and an order in a civil action certified by the district court to involve a controlling question of law as to which there is substantial ground for difference of opinion and whose immediate resolution may materially advance the ultimate termination of the litigation. As with a petition for en banc hearing or rehearing, the filing of one or more amicus briefs in support of a petition for one of these other forms of discretionary review is likely to increase the likelihood that the petition will be granted by highlighting the importance of the question presented in the petition.
Practitioners should be aware, however, that the period for filing and deciding a petition for permission to appeal is extremely compressed. A petition for permission to appeal a class-certification order or an order certified under 28 U.S.C. § 1292(b) must be filed within 10 days of the order’s entry, and a petition for permission to appeal a class-action remand order must be filed within 7 days of the order’s entry. An answer in opposition to any such petition must be filed within 7 days after the petition is served. And because a petition for permission to appeal an order of one of these types does not stay proceedings in the district court, the court of appeals will ordinarily act on the petition promptly. In part for these reasons, amicus filings in support of petitions for permission to appeal are even rarer than amicus filings in support of petitions for en banc review. For the same reasons, if an amicus brief in support of a petition for permission to appeal is being contemplated, one should plan on filing the brief as soon as possible.
Neither the Federal Rules of Appellate Procedure nor the circuits’ local rules specifically address the filing of amicus briefs in connection with petitions for permission to appeal. Counsel would therefore be well advised to keep the brief very short and to file a motion for leave to file even if the parties consent. As discussed above, at least two circuits specify such requirements for submitting amicus briefs in support of en banc petitions.
Less Is More in Amicus Briefs:
More on amicus briefs, and in particular "the virtue of brevity" and "the vice of duplication," from Mayer Brown's Federal Appellate Practice treatise (some paragraph breaks added):
Courts have heavy caseloads, and judges and law clerks are therefore busy. For that reason, they tend to appreciate short briefs — or, more precisely, briefs that say no more than necessary for the court to decide the case intelligently. They also tend to pay more attention to short briefs. As Justice Scalia put it in his book on effective advocacy: “The power of brevity is not to be underestimated. A recent study confirms what we all know from our own experience: people tend not to start reading what they cannot readily finish.” Accordingly,
a brief that is verbose and repetitious will only be skimmed; a brief that is terse and to the point will likely be read with full attention. So a long and flabby brief, far from getting a judge to spend more time with your case, will probably have just the opposite effect.
That is particularly true of amicus briefs. In Justice Scalia’s words, the “injunction of brevity has special force here, since not even the demands of duty drive judges to read amicus briefs that are bloated.” That view is shared by the justices’ law clerks. On the basis of interviews with former clerks, the author of a study on amicus briefs in the Supreme Court concluded that “[o]ne of the foremost attributes common to the ideal amicus brief is brevity.”
At least as a general rule, the same principle applies to amicus briefs in the courts of appeals. For two main reasons, an effective merits-stage amicus brief rarely requires every one of the 7,000 words authorized by the rules, and the author should try hard to resist the notion that the brief should be as long as the rules permit. Judges are aware that appellate briefs are like gas, expanding in volume to fill their container. Even though the rules permit a 7,000-word container, judges recognize and resent gaseous briefs.
First, apart from tables and certificates, an amicus brief need only include a statement of interest and an argument; it need not include a statement of the case or a statement of facts.
That is what the rules say. As a matter of practice, however, an amicus brief not only need not include a statement of the case or of the facts, it ordinarily should not include either type of statement. An amicus should assume that judges and law clerks do not wish to read procedural or factual — or any other — information that has been set forth in the party’s brief and that instead they wish to get to the main point of the amicus brief as quickly as possible. Unnecessary preliminaries create a risk that the reader will lose interest in the brief and will — at most — merely skim the brief rather than studying it carefully.
Of course, there may be cases in which the facts are critical and the amicus concludes that they have not been effectively presented in the party’s brief. In that circumstance, the amicus should include a statement of the facts of the case, but only a short one focusing on the most salient facts that underpin the arguments that the amicus will be making. If you draft a statement of facts for an amicus brief, go back after you complete the argument section to see whether you can excise some facts as unnecessary to the court’s appreciating your points. As in any brief, factual propositions should be supported by citations to the opinion under review and the record, so that the reader is left with no doubt as to their accuracy. The author of the brief must also be meticulous in ensuring that the citations actually support the proposition; if they do not, the amicus risks losing credibility with the court.
Second, as to the argument, while it may be understandable for a party to believe that it must err on the side of saying too much, so as not to omit anything that might conceivably persuade the court to rule in its favor, there is no reason for an amicus to adopt that approach. On the contrary, if an amicus feels that it must err in one direction, it should err on the side of saying too little.
An amicus brief typically has a single, discrete objective. If that objective can be achieved in relatively few pages, then, as the survey of law clerks concluded, “it is counterproductive to obfuscate the important information the amicus seeks to convey by submitting additional pages.” It is also counterproductive to risk irking the judges who will decide the case by submitting additional pages — to say nothing of the risk that the judges will only skim the brief or not read it at all. According to Justice Scalia, the author of an amicus brief should “[m]ake the one or two points (preferably one) that [he or she] think[s] will contribute something important and new — and close.”
Brevity, of course, is merely an ideal toward which the amicus should strive; it is not an inexorable requirement. In particular, “the goal of brevity should not override the more important goal of helpfulness.” There will be cases in which the objective of the amicus cannot be achieved in a few pages — cases, for example, in which there is simply a very large volume of important information to be conveyed to the court. There will also be cases in which the main justification for the amicus filing is that the party’s brief is inadequate. In that circumstance, an amicus may well require all of the words it is allowed — or at least nearly all.
Whatever its length, an amicus brief should not merely repeat what the party and other amici say in their briefs. The need to avoid “me too” briefs is one of the most common admonitions to authors of amicus briefs — and with good reason. If an amicus brief simply repeats what another brief says, the court will give it little weight. It may not even be read, once an even cursory scan reveals the duplication, as where the amicus brief tracks the organization and headings in the party’s brief. The court may go so far as to deny leave to file, if leave to file the brief is required.
Moreover, apparent duplication may lull the judges (and their law clerks) into giving the amicus brief such short shrift that they miss some unique gem of distinction or insight concealed within the morass. Supreme Court law clerks have indicated, unsurprisingly, that duplication is “the fatal flaw of an amicus brief.” If an amicus does not have anything different to say, it should either stay out of the case or consider filing a consolidated brief with one or more other amici.
Part of the art of drafting an amicus brief, therefore, is not only to have something distinctive to say but also to make it apparent that there is something distinctive about the brief. This can be done in a very brief Introduction that explains what the amicus brief contains or addresses what is not in the party’s brief. In addition, section headings should not mimic those of the party’s briefs. In sum, just as it is often said that not only must justice be done, justice must appear to be done, so too the amicus brief not only should be different from the party’s brief but it also should appear to be different.
Judicial Attitudes Towards Amicus Briefs:
The posts about amicus briefs have gotten enough interest that I thought I'd add one more, before I close with two posts about oral argument. Again, this is from Mayer Brown's Federal Appellate Practice treatise:
[A] nonparty that is not a government entity or official covered by Rule 29 of the Federal Rules of Appellate Procedure and cannot obtain the consent of the parties must seek leave of the court to file an amicus brief. Whether to grant a motion for leave to file is a decision that falls within the discretion of the court of appeals....
(a) Restrictive View
In a series of opinions, Judge Posner of the Seventh Circuit has taken a narrow view of the circumstances in which leave to file an amicus brief should be granted. Indeed, his attitude towards amicus filings has been described as one of outright “hostility” and even as a “crusade.”
While acknowledging that we are now “beyond the original meaning” of “amicus curiae,” and that “an adversary role of an amicus has become accepted,” Judge Posner is nevertheless insistent that there be “limits.” Those limits, according to his opinions, are that a motion for leave to file should ordinarily be granted only when (1) a party is not represented competently or not represented at all; (2) the amicus has an interest in some other case that may be affected by the decision in the case before the court; or (3) the amicus has unique information or a unique perspective that can provide assistance to the court beyond what the lawyers for the parties can provide.
The opinions offer a number of justifications for these limitations: (1) judges “have heavy caseloads” and so “need to minimize extraneous reading”; (2) amicus briefs may be used to “make an end run” around limitations on the length of party briefs; (3) amicus briefs “drive up the cost of litigation”; and (4) amicus briefs often reflect an effort to “inject interest group politics” into the judicial process. Judge Posner has applied the limitations without discrimination; in the most recent of his opinions, he denied a motion filed by the Speaker of the Illinois House of Representatives and the President of the Illinois Senate.
These opinions do not reflect the views of Judge Posner alone. Although two of the three were “in chambers” opinions in which Judge Posner spoke only for himself, one of the opinions was a panel opinion joined by two other members of the Seventh Circuit. And that opinion states that the limitations described above reflect the “policy of this court.”
It bears mention, moreover, that Judge Posner is one of the most respected and influential judges in the United States. For that reason, his views on amicus briefs, as on any issue, will inevitably be taken seriously by other courts. The Supreme Court of Illinois, for example, has stated that the limitations described in Judge Posner’s opinions will be treated as a “useful guide” in ruling on motions for leave to file in that court. Following that “guide,” the court ruled that the Chamber of Commerce of the United States — one of the most frequent filers of amicus briefs — would not be permitted to file a brief in that case.
Nevertheless, the significance of Judge Posner’s views should not be overstated, even within the Seventh Circuit. Because a motion for leave to file an amicus brief rarely results in the issuance of an opinion, it is difficult to gauge how consistently Judge Posner’s “policy” is followed. Still, practitioners filing a motion for leave to file in the Seventh Circuit would be well advised to include an argument that the proposed brief satisfies the standards set forth in Judge Posner’s opinions. Practitioners should be particularly careful to ensure that their proposed amicus filings are not perceived as “me too” briefs, which merely repeat the arguments of the party or other amici. That is sound practice in any circuit, but especially in the Seventh.
(b) Permissive View
Outside the geographical boundaries of the Seventh Circuit, Judge Posner’s position on amicus briefs has few defenders. Leading appellate practitioners have been highly critical. One has argued that Judge Posner’s “reflexively negative view” towards amicus briefs “makes no sense” given “the simple fact that many appellate decisions have profound effects that far exceed the boundaries of the dispute between the parties.” And within the federal courts of appeals, Judge Posner’s position clearly reflects the “minority view.” Although there have been isolated instances of courts outside the Seventh Circuit denying motions for leave to file for reasons other than untimeliness, the “general practice in the federal courts of appeals is to grant leave to file an amicus brief in most situations.”
The majority view is comprehensively set forth in an opinion by another of the country’s most respected judges: then-Judge Alito of the Third Circuit. His opinion rejects the “restrictive standards” reflected in Judge Posner’s opinions, on the grounds, among others, that they may “convey an unfortunate message about the openness of the court” and “create at least the perception of viewpoint discrimination.” Judge Alito’s opinion also responds to a number of the specific points made by Judge Posner. The opinion explains that, even when a party is well represented, an amicus may provide “important assistance to the court” — for example, by collecting relevant “‘background or fact[s],’“ providing “‘expertise not possessed by any party,’“ explaining “‘the impact a potential holding might have’“ on a particular group, or arguing “‘points deemed too far-reaching’“ by a party. The opinion also points out that requiring a prospective amicus to undertake the “distasteful task” of demonstrating the incompetence of the attorney for the party would likely “discourage amici” in cases where the party’s brief is “less than ideal” and an amicus submission would be “valuable to the court.” Finally, the opinion notes that a restrictive policy is “an unpromising strategy for lightening a court’s work load,” because the time required for “skeptical scrutiny” of proposed amicus briefs might equal or exceed the time required for studying the briefs if leave were granted, and “unhelpful amicus briefs” likely claim only “a very small part” of a court’s time in any event.
Judge Alito’s approach is thus diametrically opposed to Judge Posner’s. While the latter effectively establishes a presumption that motions for leave to file an amicus brief should be denied, the former effectively establishes a presumption that they should be granted. As Judge Alito’s opinion puts it, courts should grant leave to file “unless it is obvious that the proposed briefs do not meet Rule 29’s criteria as broadly interpreted” — i.e., unless it is obvious that the movants do not meet the broadly interpreted requirements of “(a) an adequate interest, (b) desirability, and (c) relevance.” Judge Alito’s opinion notes, correctly, that this approach “is consistent with the predominant practice in the courts of appeals.”
Thus, in most circuits, a motion for leave to file an amicus brief will ordinarily be granted as long as the motion and brief (1) comply with the technical requirements of Rule 29 and any applicable local rules and (2) make a plausible case that the brief performs one of the traditional functions of an amicus submission. In most circuits, however, a motion ordinarily will not be required, because, as Judge Alito’s opinion observes, the parties recognize that “leave to file would be granted [even] if consent were withheld,” and thus it is typical for consent to be “freely given.” Practitioners may find that consent is less freely given in the Seventh Circuit, because, under that court’s restrictive standards, it is far less clear that leave to file would be granted if consent were withheld.
This practice is consistent with our experience. Counsel who regularly practice before courts of appeals (at least other than the Seventh Circuit) recognize that it is generally pointless to withhold consent to the filing of an amicus brief, even if it is being proffered by a hostile amicus. The court of appeals is likely to grant the motion, and recalcitrant counsel gains nothing but judicial annoyance from forcing the amicus to file a formal motion. It may sometimes be awkward to explain to a client why giving this consent is not only appropriate as a matter of “professional courtesy” but also as a matter of tactical wisdom; counsel representing a party should be prepared to provide such an explanation. If succeeding on an appeal depends on keeping the court of appeals from hearing from an amicus curiae, counsel and the client may have real problems.
Answering Questions at Oral Argument:
Today, I'll close my blogging of excerpts from Mayer Brown's Federal Appellate Practice treatise with two items about oral argument. First, answering questions:
Because the greatest value of oral argument is the chance to learn what the judges find important about a case and to respond to their concerns, treating judges’ questions as bullets to be dodged is self-defeating. Questions from the bench are an opportunity to assuage a judge’s concerns at the very moment that they seem most pressing to the judge.
Accordingly, questions should be welcomed and answered, not resented or evaded. Moreover, it is considerably more likely that you will retain the judge’s attention when answering his or her question than when giving your prepared remarks. And when a question is asked during your adversary’s argument, you will again have an especially attentive audience when you refer to and comment upon the implications of the judge’s question and the adversary’s response.
Although the temptation to postpone answering a question may be strong, especially if the question relates to a subject the advocate plans to reach later in the argument, the temptation should be resisted at all costs. Never, never say: “I shall be addressing that issue later in the argument.” In the heat of argument, a belated response to a deferred question often escapes notice, or is addressed only after the judge who initially asked it has already tuned you out. In addition, further questioning may use up your time, so that you never have a chance to reach the answer to the question at the stage you would have preferred to confront it.
The time when a judge asks a question represents what educators call the “teaching moment.” Since you are there to connect with the judges who will decide your client’s fate, do not squander the teaching moment. It may be permissible to give a brief but responsive answer and then to add that you plan to address that issue at greater length later. Counsel is, however, generally better served to reorder the oral argument, if necessary, and to accelerate the full discussion of the point once a judge’s question manifests current interest in it. Moreover, counsel are likely to find themselves subject to judicial admonition for not responding promptly and directly to questions they are asked. [Footnote: One anecdote from a Supreme Court argument, perhaps apocryphal, concerns a prominent advocate who was asked by Justice O’Connor during the course of his argument how he distinguished a certain case. He first responded that it was covered in the brief, but Justice O’Connor persisted. He then demurred on the ground that the explanation would be complicated and time-consuming, to which Justice O’Connor retorted: “You’re here, we’re here, why don’t we just go ahead and discuss it?” At this point, the advocate was compelled to admit that he was unfamiliar with the case.]
One possible exception to this advice, however, arises when counsel is in the midst of answering another judge’s questions; in that case, counsel should seek to answer both sets of questions as expeditiously as feasible. In this vein, a question that appears to call for a yes-or-no answer should, if at all possible, be given such an answer, following which the advocate is free to elaborate, qualify, or explain.
At the same time, if the question involves a peripheral point, counsel need not spend more time on it than a candid and responsive answer requires. Counsel then should segue back to his or her main points. All too often, novice advocates who have taken perhaps too much to heart the importance of the judges’ questions finish an answer and then stare inquiringly at the judge, as if waiting for a nod of approval. This silence often encourages further questions, sometimes of little relevance. Counsel would be best served by switching quickly and smoothly back into the argument after responding to a question. An effective technique to signal closure is to turn or direct one’s gaze slightly away from the questioning judge and toward the rest of the panel.
If counsel does not know the answer to a question about the record or about a legal point that has not been briefed, it is appropriate to offer to submit a supplemental memorandum within a short period after argument -- a few days or a week, for example. In the case of a new legal point that is potentially adverse to your position, it is legitimate to point out that your adversary has not raised the point. On the other hand, one cannot propose supplemental briefing in response to tough questions on issues that have been briefed. In such a case, you will just have to do your best -- which you should be ready to do if you have prepared adequately. At all events, you should view hard questions as an opportunity to deal with what the court may see as the crux of the case.
If a question is unclear, counsel should ask for clarification. This must be done carefully. Judges do not like to be questioned -- that is their role. Therefore, it may seem impertinent to respond: “Are you asking whether ...?” One graceful way to deal with an unclear question is to preface your answer with a diffident: “If your Honor is asking whether ..., then ....” This invites the judge to clarify the question, if the premise of your answer is mistaken, without directly querying the judge.
Often, when asked to clarify a question, a judge will link it to other issues in the case, potentially allowing counsel to return to a point on his or her outline. At all times, credibility is crucial to the court’s confidence in counsel’s argument. If you do not know the answer to a question with a reasonable degree of confidence, never bluff. Admit that you do not know. But be appropriately apologetic: “I am sorry, your Honor, I do not know the answer to that question.” The excuse, “But, your honor, I didn’t try the case,” will not be well received.
You can take some sting out of the concession, if you can smoothly shift ground into an area where you are more confident. For example, if asked about some testimony that does not seem familiar, admit that you are not aware whether there is anything in the record on that point, but then immediately turn to something relevant that you can invoke to support your position on the pertinent issue.
If a judge asks about a case that does not ring a bell, admit it. This may be an instance in which you have no choice but to ask the judge for some help in identifying the reference. Once again, the response should be candid but respectful. Something like this may work: “I am sorry, your Honor, but that reference does not bring anything to mind. Perhaps if I had a bit more information about the case, I could respond to your Honor’s question.” While it is awkward to forget or not know about something that is germane to the issues on appeal -- or that the judge thinks may be germane -- it is far worse to get caught bluffing. That will totally destroy your credibility with the court. As Judge Selya has noted: “Credibility is the advocate’s stock [in] trade.” Indeed, often it is the advocate’s most powerful asset. Better to suffer the slight embarrassment of admitting that you do not know an answer -- and to offer to submit a supplemental memorandum addressing the point the next day -- than to risk getting caught faking it.
Just as hard questions should be seen as an opportunity to reassure the court that your position is really sound, requests for concessions should be approached with caution. Courts have been known to use concessions against an advocate in deciding a case. Whether it is wise to concede a point will, of course, depend on the circumstances. Counsel may have no choice but to concede unfavorable facts, but with careful preparation you should be able to proffer a convincing explanation of why they are not lethal to the position being espoused.
When legal concessions are solicited, however, counsel should think hard about the implications before agreeing. Does the proposed concession go to the heart of your case, or does it instead seek to test the logical limits of your position? If the former, you cannot concede the point. If the latter, it may be tactically advantageous to reassure the judge that you can prevail without your proposed rule producing the kind of untoward results implicit in the question. Anticipating questions of this sort is one constructive consequence of using formal or informal moot courts in preparing for argument. It is much better to have thought about such questions before you walk into the appellate courtroom and to be prepared with your answers than to try to figure out a response while standing at the lectern.
In any event, you should be prepared to stand your ground where you must, even if it involves disagreeing with the judge’s assumptions or premises, and you should never concede a point just because a judge is pushing for a concession. Even if the inquiring judge is disdainful of your efforts to avoid a damaging concession, remember that there are other judges on the panel who may take a different view of the matter.
If the bench is a hot one, the questions may come without pause. Answer each question directly, then try to weave your affirmative arguments in as further explanation. Needless to say, you should endeavor to make your most important points during the course of the argument even if bombarded with questions. At the same time, the purpose of the argument is more about getting the judges’ questions answered than about providing a forum for the advocate’s speeches. You should not worry unduly if there is neither time nor opportunity to cover valuable points that you planned to make; the reality is that this is almost inevitable in any complex or substantial case. Moreover, if the undiscussed points are important, they will almost surely have been covered in the briefs.
There are endless types of questions judges might ask. The following are some of the major forms, as well as examples and the occasional strategy for answering them:
(1) Pure factual questions: “Does the record show how far the witness was from the place where the collision occurred?” To these questions, counsel should give concise, straightforward answers and move on, if the question involves only a minor or peripheral point. But if the question invites focus on a crucial fact, the significance of that fact should be stressed in the answer. Make a judgment whether the question provides the “teaching moment” for driving home a major theme of your case, even if it comes at a point in your argument earlier than you had anticipated. If so, expand upon the answer and explain why it is important to the ultimate resolution of the case. If, unfortunately, you do not know or cannot recall the correct information, consider whether the answer may be important enough to turn to co-counsel at counsel table to see whether one of them can supply the answer.
(2) Threshold jurisdictional and waiver questions: These are questions such as: “Do you have a final judgment as to all parties and issues?” “Is your appeal timely?” “Is there diversity of citizenship?” “Why isn’t the case moot?” “Does the plaintiff have standing?” “What is our standard of review?” “Where was the issue raised below?” “Did you make the necessary pretrial motions or offer a curative instruction?” These are all questions that counsel must be prepared to answer, even if one’s opponent has not raised them in the briefs. The oral argument is the last place that you wish to discover a potential defect in your case that you have not considered how to address. Questions like this must be taken seriously, because they may reflect a desire on the part of at least the questioning judge to try to duck the main substantive issues on the appeal. Your answer will depend, of course, on whether you are appellant or appellee and whether you would be happy to have the court sidestep an issue or whether you need to get it decided in order to prevail in the case.
(3) Hypothetical questions: These question are tricky, and they are often the most important questions the advocate will receive. Counsel should not reflexively respond, as too many lawyers do: “That is not this case.” Most judges find such a response intensely irritating and an insult to their intelligence; they are perfectly aware that the question is not the precise one presented by the case. That is why they preface it with “if” or something like it. Instead, you should try to respond with a “yes” or “no” and then explain why the hypothetical demonstrates the soundness of your position or why, although the hypothetical might lead to a different result, the factual differences in the premises of the hypothetical are key to the difference in outcome. Generally, hypothetical questions are designed to test the principles underlying one’s argument. Counsel should avoid a radical argument that overextends the principle in a manner the judges are likely to find absurd or unacceptable. Where the hypothetical raises the possibility of a distasteful result, you should also explain why adopting the principle you are propounding would not compel the court also to reach an untoward result suggested by the hypothetical.
(4) Tennis-match questions: These are questions in which one judge is trying to counter or influence another judge, and counsel is simply the foil. An appellate oral argument is not merely a conversation between judges and the advocate, but also one among the judges themselves. Often, the judges will not have had occasion to discuss the case among themselves before the argument. Those judges with strong feelings about the proper outcome will often use their questions to attempt to persuade fellow judges. But from the standpoint of arguing counsel, these questions simply call for giving the best possible response. Where they are friendly, they should be seized upon as a means of advancing the advocate’s argument. Where they are implacably hostile, counsel should not become flustered but should keep in mind that the other judges hearing the case do not necessarily share the questioning judge’s viewpoint. And remember, you cannot participate in the conference at which your case will be discussed and voted on, so this is your best opportunity to be a party to the judges’ interchanges with one another.
(5) Attack questions: “Didn’t we hold in Smith v. Jones that ...?” Although these questions may present an uphill battle, they offer an important opportunity for counsel to explain why seemingly adverse precedent, or another dangerous point lurking in the question, is not controlling. These questions should not come as a complete surprise to the well-prepared advocate who has studied the briefs and applicable case law from the point of view of a skeptical judge. Chief Justice Roberts has recommended that counsel admit when his or her case is a complicated or hard one in order to attract sympathy from the bench, as insisting implausibly that the case is a “no-brainer” merely invites judges to find holes in your argument. Even though the question may be propounded in a forceful manner, counsel should respond in a calm and reasoned fashion and should not be bullied into making potentially fatal concessions. Counsel should also bear in mind that a hostile question does not necessarily signify a hostile questioner. Some of the toughest questions come from judges who are persuaded by your argument but need certain remaining questions answered in order to write what they wish to be an effective opinion.
(6) Socratic questions: These are questions that are actually intended to draw out from counsel the key points that the judge believes counsel wants to make. They may reflect the judge’s understanding of your position and a desire to see the arguments laid out in the sequence and at the time the judge believes is most intelligible. They may reflect a desire to have you move on quickly through your points, because the questioner knows where you are going. Try not to misinterpret these questions as an attack and respond defensively. Instead, grasp the questions appreciatively and provide prompt and reassuring answers.
(7) Softballs: These are questions in which the judge is characterizing your argument or your opponent’s argument or asking about something in the record or something held in another case. The purpose of this type of question is to help you underscore a favorable point. A surprising number of advocates, however, misinterpret softball questions as hostile, suspecting that the judge is cleverly laying a trap. Instead of appreciating the question and running with the answer it invites, too many lawyers respond defensively. This frustrates the questioning judge and forfeits a golden opportunity to drive home your point. Instead, you should embrace the question and seize upon it to delve into the argument. But if the question, though perhaps proffered with a seeming intent to be helpful, leads to conclusions you are not prepared to defend, you should not take the bait. Doing so is likely to produce a barrage of skeptical questions from the other judges. Best simply to correct the mistake politely and move on.
(8) Humorous questions: Sometimes judges like to get puckish with their questions, suggesting some silly comparison or jovial anecdote. Counsel should enjoy these quips, but should neither get distracted nor attempt to respond in kind, as such attempts usually fall flat. If the judges want to be light-hearted, let them, even if it appears that they are doing so at your expense. Stay on message and preserve a tone of respectful and serious professional gravitas.
(9) Irrelevant questions: In many oral arguments, a judge will ask a question that may seem totally beside the point. These questions are perplexing and may prompt you to scratch your head, figuratively, in confusion and perhaps mild anxiety. You will wonder whether the judge sees something that you missed or instead simply misunderstands the case. You should provide a short, respectful response and return to the affirmative argument. If the point is in fact relevant in a manner that counsel has failed to grasp, the judges will probably be quick to provide enlightenment.
(10) Repetitious (fly-paper) questions: Sometimes a judge will doggedly pursue a point, even after you have attempted several times to provide your best response, and you have nothing further to offer. The judge simply will not let go. If, after several attempts to explain, the judge will not get off the issue, as a last resort, counsel can try “I am sorry, your Honor, but I have given the best answer I have, which I hope the court will find satisfactory.”
(11) Stumpers: If you have no idea what the judge is asking about, or if you do not know the answer to the question, use one of the techniques discussed above for handling such questions, trying to tease out the judge’s thrust without directly questioning the judge.
(12) Questions as to the nature of further proceedings: These are the “what if” questions that ask the advocate about how the court should dispose of the case. “If the court disagrees with the result below, should it reverse outright or remand?” “Should an evidentiary hearing be held?” “Should the remand be to the same or a different judge?” “Is the proper remedy judgment for the prevailing party or a new trial?” “Should any retrial be limited to damages?” “Should an issue be certified to the state court?” “Should decision be held until the Supreme Court decides another case?” “Should sanctions be imposed on counsel?” Counsel should have anticipated any of these questions, like the threshold questions discussed above, as part of a proper preparation for the argument. The key here is knowing what remedy you want the appeals court to provide.
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.
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.