Appellate advocacy can be quite challenging. Once the briefs are submitted, each party is typically allowed only 15 minutes to present their case. However, depending on the specific court and the issues being discussed, the argument may differ significantly from what you might expect. Having just returned from oral argument in the Ninth Circuit Court of Appeals, I thought it might be helpful to share some tips for approaching oral argument effectively.
Before the argument, I prepared a very detailed outline of the points I wanted to make. The outline highlighted the strongest arguments, references to the record, and a compelling conclusion. I had a solid ten minutes of practical facts, arguments, and issues to raise, along with anticipated questions the judges would ask and thoughtful answers.
However, the only part of the outline I used was my introduction, “May it please the Court,” along with introducing my co-counsel, my client, and myself. After that, the Court took control with a steady stream of factual questions about the record in the case. There was no discussion of the statute of limitations, RLUIPA, the Free Exercise Clause of the First Amendment, or Estoppel under Oregon law. There was no time for me to argue my points. Instead, the focus was solely on the record.
Here are the core lessons and key takeaways from the argument:
- Oral Argument Matters in Key Cases: While oral argument may not often change the outcome, it is crucial in close cases, cases involving novel issues, or cases with unique facts where judges might have misunderstandings. It supports, rather than replaces, a strong brief.
- Prioritize a Conversation: The goal isn’t to give a speech but to have an honest dialogue with the judges. Focus on understanding and addressing the court’s main concerns.
- Answer Questions Directly: Never ignore or dodge a question. Provide a direct answer—often starting with a “yes” or “no”—and then explain. Evasive responses can suggest unpreparedness or concealment.
- Master the Record and Law: Know the entire case thoroughly, including the factual record and relevant case law. Credibility can be easily lost by misstating facts or misrepresenting legal principles.
- Focus on Key Issues: With limited time (often 15 minutes), you cannot cover everything. Concentrate on one to three critical points that are most vital to your case. Simplify your argument to its most persuasive form.
- Maintain Credibility: Address difficult facts or unfavorable details openly, rather than hoping they go unnoticed. Making wise concessions on weak points can enhance your credibility.
- Be Nimble and Ready for the “Hot Bench”: Anticipate judges’ questions and be prepared to deviate from your planned outline to follow the court’s line of questioning. Also, be ready to argue effectively even if the judges ask few or no questions (a “cold bench”).
- Know Your Citations and Have the Record Ready. Be prepared to refer to specific pages by organizing and tabbing your record copies. If a question involves non-record matters, clarify that the information is outside the record before answering. Correct Misunderstandings Respectfully. Politely address any mistaken impressions about key facts.
These are just a few of the lessons that I learned when arguing before the Ninth Circuit Court of Appeals. If you have an appellate argument coming up and would like to learn more about what to expect or need help crafting your argument, please feel free to reach out to me for assistance.
