Thursday, January 22, 2015

Making Oral Argument Productive: Judges' Edition

By Stacey Mandell
Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

The following article first appeared in "Circuit Rider," the official publication of the 7th Circuit Bar Association. Brian J. Paul authored the article and has kindly allowed us to republish his article.

Lawyers are taught early on what judges expect of them at oral argument. Much has been written on this topic. Know the record backwards and forwards, and stay within it. Answer the question asked, not the question you wish had been asked. Be civil to opposing counsel, and be respectful to the court. These are some of the basics.
But just as judges have certain expectations of the lawyers who will argue a case, lawyers have certain expectations of the judges who will conduct the argument.  Much less has been written on this topic. So allow this lawyer to make a few suggestions along those lines. 
1. Be active. I know that some cases are yawners, but we can’t address your concerns if you don’t tell us what they are. If you don’t have concerns, then maybe you have a question about the facts, or perhaps you need clarification on a point of law. Whatever it is, please ask us. Allowing us to give an uninterrupted speech probably doesn’t help you, and it doesn’t really help us either. We genuinely want to make the case easier to decide. 
2. Presume good faith. We lawyers sometimes say things in argument that may not ring true, but in my experience most lawyers don’t lie. We may have convinced ourselves of own nonsense, and you’re right to call us on it. But resist the urge to think that we’re trying to pull the wool over your eyes, because we’re probably not. We’re more likely just trying to do the best we can with what we’ve got, even if our efforts may appear misguided. We are confined by the record, and as a result sometimes we feel compelled to try to force a square peg into a round hole. 
3. Allow us to answer the question until we actually don’t. I have heard some arguments in which a judge asks a question, and just a few words into the answer the judge accuses the lawyer of being evasive. Lawyers should immediately answer the question asked, and as directly as possible. Most lawyers try to do that. But sometimes we think we’re answering the question when we aren’t, perhaps because we’ve misunderstood. So before cutting us off in exasperation, on the assumption we’re being less than forthcoming, consider asking the question a different way; give us a second chance. 
4. Accept that we’ve answered your question even if you don’t like our answer.  We all know judges occasionally try to make a point with their colleagues through their questions. We also know judges often come to oral argument predisposed to decide one way or another. That’s only natural if you’ve already read the briefs, and that’s fine. But if we give you an answer that doesn’t advance your point or confirm your initial views, and if it doesn’t appear you can shake us from our answer, consider moving on. Oral arguments, like cross-examinations, get bogged down if the questioner isn’t willing to recognize that some answers just aren’t going to change. 
5. Warn us ahead of time if you think we’ve missed something critical, or if, in a case involving several issues, there are only one or two that really interest you. It goes without saying that we should be well prepared to handle questions on all topics related to our case. But sometimes everyone involved will have missed a fundamental issue. Subject matter jurisdiction comes to mind; there have been some cases in recent years where the plaintiff and the defendant both have just flat missed the boat on jurisdiction. If you think we’ve all blown it, or if you believe a particular issue requires more attention than others, consider giving us a heads up before oral argument—maybe a notice of some sort. “Be prepared to address X” is all the notice needs to say. That way we know to be particularly prepared to discuss X, and, in turn, you’re more likely to benefit when you question us about X. 
6. Try to remain even-tempered even when things have gone south. I can only imagine how frustrating oral argument is at times for appellate judges. You want help deciding cases, and sometimes, for one reason or another, we fail to give you that help. It probably happens more often than we lawyers would care to admit.  But berating an attorney in open court for the faults of his presentation (or worse, because he’s got a bad case) isn’t likely to help matters. Nor will disengaging. Instead, consider firmly but calmly pointing out the problem, and then switching topics. Maybe the lawyer is woefully unprepared to address issue 1 but fully prepared to address issue 2. Through measured persistence, you may find the argument can be salvaged after all. 
7. Recognize that hypotheticals can get rather far afield. This generally isn’t a problem unless you’re using the hypothetical to determine whether a lawyer will admit defeat on a particular point. Remember that our responses to hypothetical questions go only so far; they may help you with your analysis, but they generally do not decide the case.
8. Bear in mind that our clients are watching. No matter how badly someone may want to win, litigants usually can accept defeat if they genuinely think they’ve gotten a fair shake. Not only is it important to be evenhanded, then, it is important to display evenhandedness. After all, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954). This may require, for example, asking tough questions of both sides even if you think one side or the other should clearly win. It is also helpful to demonstrate that you have a solid understanding of the case. This will go a long way to convincing the parties that you’ve given thoughtful consideration to their arguments. 
It has been said that a good oral argument isn’t so much an argument but a conversation. That’s true, and when both sides thoughtfully engage in that conversation, oral argument is at its most productive. This article has offered some suggestions for judges on how to foster a truly productive conversation. Next time, I’ll focus on some suggestions in the same vein for lawyers.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.