Charles G. Cole is a partner in the Washington, D.C. office of Steptoe & Johnson LLP. His practice encompasses appeals in both federal and state court. A former law clerk on both the U.S. Supreme Court and the U.S. Court of Appeals for the District of Columbia Circuit, he has written and spoken on various aspects of appellate practice, such as oral argument, brief-writing and the Supreme Court's certiorari process. He is a member of the Appellate Practice Committee of the Litigation Section and a former Co-Chair of the Amicus Briefs Committee of the Criminal Justice Section.
This talk will cover what you can do in advance of an appellate argument to enhance your presentation. I’m going to talk about what to read, what to write and how to practice.
Objectives for Oral Argument
Appellate arguments differ from trial proceedings in that they are compressed. You have only a portion of an hour to present your case, answer your opponents and persuade the panel. Thus, you need a presentation which is spare – which goes quickly to the heart of your case. You need something more than a repeat of the headings of your brief. You need to come up with a few broad themes that will make the case understandable and your resolution of it attractive. At the same time, you need to maintain credibility with the Court, by answering questions honestly and quickly. And you need to address any concerns that the Court might have with regard to your proposed solution. In order to accomplish these goals in the limited time for an argument, you will need to do quite a bit of advance thinking and preparation.
You should therefore begin early – perhaps as much as three weeks before the hearing. Even if you don’t use all of that period to work on the argument, you will have time for your thoughts to develop and gel, to do some additional research, and to become fully conversant with the case once again.
What to Read
The first step in your preparation is to read the briefs. All of them. Straight through. As though you were a judge reading them for the first time. Usually, this is the first opportunity that you have to read all of the briefs in this continuous fashion. It should give you some insight into both themes and problems.
Then turn to the cases. I usually ask someone in my office to prepare a notebook with all of the cases cited in the briefs, in alphabetical order. I always have the notebook tabbed and have an index prepared, so that I can find the cases quickly during argument. I include the same marked-up, dog-eared versions of the cases that I used in briefing the appeal. When an appeal involves a great many precedents, I break them into two or three categories based on the issues. I also use double-side copying and spiral binding to reduce the size of the notebook.
You need to approach the cases with a sense of priority. Try to look at them all, but spend most of your time on the few that lie at the heart of the appeal. The Court is not likely to inquire about the peripheral cases that show up in briefs. But it may expect you to have a thorough knowledge of the facts and procedural setting of the few key precedents on which the appeal turns.
A third crucial area for study is the record. Many appellate judges are confident of their ability to analyze the law, and look on oral argument as their opportunity to learn about the underlying facts and procedural history of the case. Your ability to answer their questions with confidence and insight is central to your credibility.
At a minimum, you need to know what is in the joint appendix. Because of the way that it is prepared, based on designations by two or more parties, it is often a hodge-podge of pleadings, transcript pages and other materials. It’s not easy to read. But if you find it confusing, imagine how the Court will react. You need to become comfortable with the ordering of the materials in the joint appendix and anticipate the Court’s questions.
You also need some way of finding materials in the record quickly. I often add plastic tabs directly to pages of the joint appendix, marking key items, such as the opinion below. Also, I identify the four or five principal factual points that are crucial to my argument, and list the parts of the record where the key support appears. I carry that piece of paper with me into the argument, in case I get asked for record support.
Often, your review of the facts should go beyond the record itself. If the events at issue occurred at a specific location, you should see it. If an industry practice is at issue, you should talk to people in the industry to make sure that you know how it works. If you find yourself with questions about the paper record, you should talk to the trial counsel to understand his or her perspective on what happened.
What to Write
Once you have completed a thorough analysis of the record, it’s time to come up with an outline for your argument. Appellate lawyers differ on how much of an argument should be drafted in advance, but everyone agrees that you need to identify and put down in writing the key points that you intend to raise. Ideally, you can put these on one or two pages. These pages should sit in front of you on the podium, and become the checklist of what you intend to accomplish during oral argument. They help you stay on course even in the face of heavy questioning. The outline can be annotated with citations to the record or to key cases, even if you don’t intend to mention them.
One other item should always be prepared prior to oral argument – an opening paragraph. The first minute or so of your presentation belongs to you. These are the only words that you can be sure that you will have a chance to say before you are interrupted by questions. So you want to find a way encapsulating your entire case in one paragraph. Often, this can be done by stating the issue before the Court in a way that suggests your resolution. Your statement should use the simplest possible language. It could mention a few key facts, but not many. It should give the key reason for resolving the case in your favor.
Avoid starting off with a narrative, since this tends to provoke questions on minor issues. Avoid also a roadmap to your argument, since this will not tell the Court why your side should win. Instead, the opening paragraph should explain what the case is about and why it should be resolved in your client’s favor. You needn’t read the opening paragraph at the actual hearing; in fact, you needn’t give exactly the same paragraph that you prepared in advance. But you need to think about the beginning as a means of condensing and simplifying your argument.
One way to develop an opening paragraph is to try to explain the case in just a few sentences to a friend. When you do this, you will find yourself automatically identifying the most important facts and the core legal issues.
How to Practice
When you have organized the themes for your presentation, it’s time to test them. There is no better way to do so than in a moot court. This is a practice argument, with friendly lawyers playing the roles of judges. The judges interrupt with questions as in the courtroom. There is no stopping for commentary until your argument is finished.
Like other forms of practice, a moot court will increase proficiency.
But a moot court is more than just a rehearsal. It is a laboratory for testing the content of your argument. Assuming you choose moot court judges who are reasonable proxies for the ultimate panel, the moot court will furnish a wealth of information about how the actual oral argument is likely to proceed. It tells you what questions the real panel is likely to ask; what factual or procedural points are not clear from the briefs; what issues will be the most difficult for the judges; what points are likely to sway them. In effect, the moot court is for the appellate lawyer what a shadow jury is for a trial lawyer.
Now, some tips about putting together a good moot court. Picking the right panel is key. My advice is to stay away from lawyers who have worked with you on the appeal. They already know too much to simulate the reactions of judges hearing the case for the first time. Case veterans are likely to ask the narrow questions about the record or case law that troubled them when writing the briefs. Invite them to serve as critiquers, but not as judges.
For the same reason, I would be wary of specialists in the field. Most courts of appeals, at least in civil cases, are not composed of specialists. Specialists like to explore technical questions; those questions do not necessarily help in shaping broad, persuasive answers. So look for lawyers who are intelligent, articulate, and have the kind of broad experience common among appellate judges.
The ideal number of moot court judges is three. With a multi-judge panel, the moot court is less likely to break down into either a friendly discussion or a one-on-one debate. A panel adds perspective and prevents the views of a single judge from dominating the argument. However, it usually doesn’t make sense to have more than three judges, because the members tend to interrupt one another so much that the thread of the argument is lost.
It is often prudent to invite your client to the moot court as an observer. This gives your client a preview of your argument, and a chance to comment. Sometimes, the panel will raise practical questions about the industry or about your client’s objectives that cannot be answered from the record. Your client can help. Perhaps more important, if there are tough strategic decisions to be made about how to answer certain questions, the client will be able to give the kind of direction that is often impossible in the press of an appellate argument. In fact, one of the hidden advantages of a moot court is that it will educate your client, in advance of the oral argument, about the toughest parts of your appeal.
You will get the most of the moot court if you arrange for someone else to take careful notes on the questions raised. If you can video-tape, that’s great. If not, ask an associate who worked on the briefs to serve as the reporter. You will be too busy making your argument and answering questions to perform this role, and you will lose much of the value of the moot court if you do not have a chance to review the sequence of questions and answers.
It is not a good idea to hold the moot court on the day before the oral argument. Too often, after the moot court, new research needs to be done, and your presentation needs to be reworked. Leave yourself some time to meditate on the issues and come up with a new approach. You may even want to try your revised approach in a second moot court.
Research the Panel
Of course, at some point you need to focus on the actual judges for your argument. If you can learn which judges will hear your appeal, you will of course to send an E-mail around your office to see how they handle things on the bench. You will also consult your collection of cases to see whether they have spoken directly to the issues in the appeal. But you should not stop there. You should look for a biographical profile on each judge. You might also run a Lexis or Westlaw search with the name of each panel member as author and a reference to the field of law for the appeal. This may not tell you the views of the panel member on the specific issues in your case, but it will tell how familiar the judge is with the basic principles in that area of law. This can be very useful. It is rarely productive to cite back to judges their own prior writings, but it is often helpful to know how much must be explained, and how much knowledge can be assumed.
Final Steps Before Argument
One final step is always needed before the argument. You need to shephardize or update by some other means all of the principal cases cited in the briefs. You need to do this research in time to submit the additional precedents in accordance with the local court rules, sometimes as much as a week in advance. In any event, it’s important to know about any recent cases in the area, for a reference to one at the hearing can easily throw you off your game plan.
My last tip concerns the night before the argument. It’s always tempting to keep studying and practicing for a crucial event like an oral argument. But the truth is that the incremental amount of knowledge that you can add on the last night is far less important to the outcome than having an advocate who is fully alert in the courtroom. So, the best course is to prepare early and go to sleep early. If you have followed all of the other tips in this presentation, you’ll do fine.