September 20, 2014
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Avoiding Surprises: Planning for Oral Argument On Appeal
Appellate practice runs on a predictable track. The losing party files a notice of appeal, the record is compiled and the parties file their briefs. These predictable events make planning and budgeting for an appeal a relatively straightforward task. Attorneys and clients typically know how the appeal will proceed and do not face the type of risks posed by the winding roads of discovery, pre-trial procedure and trial. The wildcard in this otherwise straightforward process is oral argument. Oral argument is often treated as a surprise or a burden. But through proper planning, oral argument can minimize the risk on appeal and strengthen the chance of a favorable result. To achieve these goals, both clients and counsel should consider at least five steps to properly plan for oral argument.
First, both the appellate practitioner and the client should come to an early understanding of how likely it will be that the court will order oral argument in that given case. Oral argument practices differ markedly among the various federal circuits and even more so among state appellate courts. For instance, the Seventh Circuit holds argument in virtually every civil matter, the exception usually being when a pro se litigant is involved. Other circuits and some state courts rarely conduct oral argument and will reserve it for only the most controversial cases. Reviewing the argument statistics and contacting the court staff early in the appeal will provide guidance as to whether argument can be anticipated in a given case. This knowledge helps both the client and its counsel prepare early on for the possibility of argument and can give greater weight to the briefs, which may be the parties’ only chance to address the court.
Second, both the attorney and the client should know what process to expect going into an argument. Most courts have detailed procedures for how their arguments operate. Learning these details should not wait until the morning of argument. For instance, almost all courts require that only one counsel per party may argue. As such, clients must decide early which of their counsel will actually argue the appeal. Similarly, some courts will limit the number of counsel per side, so that appellants and appellees sometimes must coordinate as to which of them will actually participate in the argument and who must stand aside for another party. These decisions are far easier to make earlier in the appellate process.
A key procedural consideration is often the issue of time. Each court has different practices as to how much time will be given for argument. The most recent highwater mark appears to be the U.S. Supreme Court’s arguments in the cases deciding the constitutionality of the Affordable Care Act, which ranged over three days and a total of six hours of argument. It is far more typical for lower court arguments to last less than an hour, and often less than a half hour. Some courts will sometimes give each side a mere five minutes. These variances in the time allotted greatly change the strategy in preparing for argument. An attorney with the luxury of a half-hour of time can prepare a loquacious presentation that ranges in depth over many of the issues in the case. An attorney with ten or even five minutes must be laconic in her speech and surgical in her approach.
Other procedural questions include whether the court will make the panel members names available before argument, when the appellant must reserve its rebuttal time, whether there is a deadline for submitting additional authority before arguments, whether the court will hold multiple arguments on that same day so that there will be a chance to observe the panel ahead of time, and the court’s approach to demonstrative exhibits. All of these questions should be laid to rest long before the day of the argument.
Third, proper planning requires a respect for the importance of argument. A truism holds that a lawyer cannot win an appeal at argument but can lose it there. But judges often claim to the contrary. See BNA, Federal Appellate Practice § 12.1 at p. 438 (quoting a Fifth Circuit judge as stating that oral argument changes the result “in about ten percent of the cases” and “affects the court’s reasoning and the details of the opinion in a significantly greater percentage than that”). Studies have actually confirmed that argument can have a material affect on the results reached by individual judges. One unique study examined the notes compiled by Justice Blackmun over a period of years in which he sometimes evaluated the performance of the attorneys before the Court. The notes showed that counsel could change the Justice’s vote “dramatically” depending on the quality of argument. T. Johnson, The Influence of Oral Arguments on the U.S. Supreme Court, 100 AMERICAN POLITICAL SCIENCE REVIEW 99 (2006). For instance, the study suggests that “when the appellant’s attorney is manifestly better than the appellee’s attorney, there is a 77.9 percent chance that a justice will vote for the petitioner, whereas this likelihood decreases to 38.6 percent when the appellee’s attorney is clearly better.” Id. at 109. Similarly, a study conducted by two Eighth Circuit judges showed that oral argument changed their votes in 31 percent and 17 percent of their cases over a 10-month period. Myron H. Bright, The Power of the Spoken Word: In Defense of Oral Argument, 72 IOWA L. REV. 35, 40 n.32 (1986). Argument should therefore be treated as a serious endeavor that presents a real chance to address the concerns of the judges and potentially alter the result in the case. It is therefore not a burden but an opportunity.
Fourth, avoiding surprises means not just preparing for the argument, but preparing the right way. Lawyers should not expect an opportunity to engage in long soliloquies or to present preplanned presentations. Instead, argument will almost always amount to a give-and-take dialogue with the judges. This process can reveal the areas of the case most troubling to the judges and give the well-prepared counsel the best opportunity to address them. As Judge Frank Easterbrook of the Seventh Circuit puts it, the “brief is counsel’s monologue, argument the dialog. . . . If the lawyer is lucky, he will hear the doubts that the judge noted in red ink in the margins while reading the brief; a skillful advocate elicits those from the bench. Far better to learn of the judge’s qualms while time remains to give the answer than to be shocked when the opinion appears.” BNA, Federal Appellate Practice § 12.1 at p. 438 (citing 20 Questions for Circuit Judge Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit (Aug. 2, 2004)).
This process should inform how counsel prepares for argument. Instead of preparing a speech that might never be delivered, the focus of preparation should rest on the potential questions that judges might ask. Few questions should be unexpected by the time argument arrives. Moreover, proper preparation includes knowing which points must be made during an argument. Counsel should generally prepare a list of no more than five key points that should be presented during the argument. These points form the core of the argument and give counsel a reference point to which to return when the argument strays into less comfortable territory.
Fifth, argument requires practical planning in terms of budgeting. Because it is unpredictable as to whether argument will be held at all, the best way to minimize surprise is to plan in advance on having argument. Budgeting for argument ahead of time gives the best possible picture of the potential expense of an appeal and avoids a potentially uncomfortable and expensive surprise if argument is ordered.
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