" ' 4

'P N _ Thfe
C ai
0 dm
Awoa

Don't kid yourself Cases can be won or lost at oral argument.

By Myron H. Bright As I reflect on the appeals I took as a them constitutes but one in the growing
lawyer, I think that if I knew then what grist of the judicial mill. It enhances the
JUSTICE Jackson once advised a graduat- I know now as a judge, I could have need for lawyers to know their cus-
ing law class: "If the day of one's mak- been one "helluvan" appellate advocate. tomer, the appeals court. An appellate
ing an oral argument is not one of the In the words of John W. Davis, a great court typically operates "hot" or
great days in a lawyer's life, he should constitutional lawyer of an earlier day: "cold." A "hot" court does not assign
not make the argument." Yet, as Justice "A discourse on argument on an appeal cases for opinion before oral argument.
Douglas observed in his book The Court would come with superior force from Usually all of the judges have read the
Years: "Few truly good advocates have the judge who is in his judicial person briefs, and any member of the court
appeared before the Court. In my time the target and trier of the argument.... may draw the opinion. Federal appeals
40 per cent were incompetent. Only a Supposing fishes had the gift of speech, courts generally operate "hot," but
few were excellent." who would listen to the fisherman's many state appellate courts function at
The gap between the quality of oral weary discourse of flycasting?" I am least semi-"cold." State appeals may be
argument urged by Justice Jackson and one of the fishes that lawyers seek to preassigned for opinion, and the pre-
the caliber of advocacy observed by Jus- hook on their bait. assigned judge prepares for oral argu-
tice Douglas highlights my purpose ment to a greater degree than other
and approach: to provide an appellate members of the court, who because of
judge's perspective on the fundamental time constraints may limit their prepa-
principles of effective oral argument. ration to a reading of the memoranda
No judge can claim his or her perspec- circulated by the judge who has drawn
tive as the definitive view on oral advo- the case assignment. So an appellate
cacy, but I have found that many fed- advocate may find it necessary in a
eral and state appellate judges share a "cold" court to present the case's back-
remarkable similarity of ideas on the ef- ground and the advocate's contentions
fective use of oral argument. With their more thoroughly before expanding on
aid, I have formulated the "Ten Com- the argument.
mandments of Oral Argument." In any court, however, the advocate
Whether new or old to the profession, What should the advocate know should not assume that the judges
every advocate can learn something about us fishes in the sea of appellate know too much or too little about the
more about the techniques of arguing litigation? Judges are busy. The experi- case. My senior colleagues recall from
appeals. Indeed, sometimes the experi- enced ones have seen caseloads double, years ago the argument of a young law-
enced advocates-those who appear in triple, and quadruple in a decade or yer who began his presentation: "Your
our court frequently-do not necessar- less. It behooves appellate advocates to Honors, this is a contract case. A con-
ily deliver the most effective argument. realize that the case so important to tract represents a mutual manifestation
of mutual consent, usually supported not try cases de novo. Federal appeals with the superior rights of vehicles
by consideration." The presiding judge courts almost never do so. If the advo- traveling on a highway?" Already
interrupted: "Counsel, you may assume cate fails to protect the record in ac- counsel is in trouble. Most courts wish
that this court is generally familiar with cordance with the rules of the court, to hear counsel immediately address
the rudimentary principles of contract forget any thought of appeal. three introductory matters: What is the
law." Counsel then promptly replied: Assume, however, that all prelimi- question (or questions)? How did it get
"That's what I thought in the court be- nary hurdles have been surmounted. before the appeals court? What facts
low." The appeal will be heard on Tuesday at does the court need to know to decide
Perhaps that counsel assumed too lit- 10:00 A.M. The busy lawyer grabs the that issue?
tle. But I have seen counsel assume too file at 9:00, takes a quick look at the Aside from the A-B-C case, most
much-that the court knew everything briefs, and says, "Let's go!" judges tell me, and I agree, that effec-
about the case and wished to decide it Forget it, stay home! Effective argu- tive advocacy requires a lawyer to focus
then and there. In one case, the appel- ment requires careful preparation. on but a few issues on which the appeal
lee's counsel rose and began: "I Among other things, the lawyer should must turn-one or two issues, almost
suggest this case calls for a one-word completely review that part of the rec- never inure than three. In a civil appeal
opinion - 'A-F-F-I-R-M-E-D. Af- ord bearing on the appeal, reread the counsel for the appellant should con-
firmed.'" Quick as a flash, one judge key cases, and index the evidence centrate from the very beginning of the
responded: "How about a one-word (transcript and exhibits) for ready ref- appellate procedure on narrowing the
opinion -'R-E-V-E-R-S-E-D'?" "Well," erence during argument. The old adage appeal to presentation of only the
stammered counsel, "that would be dif- for success applies to appellate as well strongest claims for reversal. If the ad-
ferent." as trial advocacy: 99 per cent prepara- vocate cannot win on the strongest
With those admonitions, consider tion and 1 per cent inspiration. A.B.P. argument, he or she is not likely to suc-
these suggestions for oral argument -Always Be Prepared. ceed on the weakest. Presentation of too
based on the following hypothetical, an many issues may blind the court to the
actual appeal in our court (638 F. 2d forest among the trees.
56). Cars A, B, and C, in this order, The comments by a number of judges
happen to be traveling in the same provide helpful views on effective oral
direction in the right-hand lane of a presentation.
two-lane highway. Car C, the rear car, *Chief Judge Edwards, United States
pulls into the left lane to pass cars B Court of Appeals for the Sixth Circuit:
and A. About that time, Car B moves "Do attempt to change places in your
into the passing lane to overtake Car A. imagination with the court. Try to fur-
To avoid a collision, Car C turns toward The A-B-C case comes on for argu- nish the tools of decision which you
the ditch, where it rolls over and in- ment at the appointed time. The appel- would need if you were on the bench.
jures the driver. The driver of C sues lant opens: "On a sunny day in July be- Think of your oral argument as your
and recovers damages from B in a jury tween Detroit Lakes and Fergus Falls, opportunity to be present at the deci-
verdict. B appeals, claiming that the Minnesota, on Highway 59-the route sional conference of the court, with
trial judge committed prejudicial error is very scenic-." "Hold it," interrupts voice but without vote."
by refusing to instruct the jury on the judge Jones. "What does that have to do eChief Justice Robert Sheran, Min-
superior right of a forward vehicle to nesota Supreme Court: "Oral argument
use of the highway. el developed my ten commandments is most effective, in my judgment,
The requested instruction, as set from an appellate practice institute at the when used to give a summary and
forth in the jury instruction book used Hamline University School of Law and ,overview' of the detailed materials
by all courts in the state, provides: during a jurist-in-residence program embodied in the brief. It is helpful if the
"When two vehicles are traveling in the sponsored by the St. Louis University advocate will 'step back from his case'
School of Law. In addition to those ap-
same direction, the vehicle in front has and identify the practical consid-
pellate judges named in the text, the fol-
the superior right to the use of the erations which move an appellate court
lowing offered me assistance by way of
highway for the purpose of overtaking letters or conversations: to favor his position and provide legal
and passing another vehicle and the Federal circuit judges: Wilfred Fein- reasoning which would make it under-
driver behind must use ordinary care to berg of the Second Circuit; Arlin M. standable for the appellate court to do
operate his vehicle in recognition of Adams of the Third Circuit; Frank M. so."
this superior right. This does not re- Coffin of the First Circuit; George Ed- *Chief Justice Ralph J. Erickstad,
lieve the driver of the forward vehicle wards of the Sixth Circuit; Irving North Dakota Supreme Court: "I con-
of the duty to use ordinary care and to Goldberg of the Fifth Circuit; Donald P. sider most effective a presentation
obey the rules of the road." Lay of the Eighth Circuit; William H. which stresses what counsel believes to
Mulligan of the Second Circuit; and be crucial to his or her case."
The issue seems simple and clear cut:
Oliver Seth of the Tenth Circuit.
whether the trial court erred in refusing *Chief Judge Thomas E. Fairchild,
State appellate judges: Donald Bred-
to grant the requested instruction. We key of the Nebraska Supreme Court; United States Court of Appeals for the
will assume the alleged error has been Allen L. Donielson of the Iowa Court of Seventh Circuit: "An appellant knows
preserved for appeal. In making that as- Appeals; Francis G. Dunn of the South the most appealing argument of the ap-
sumption, let me add a caveat. Appeals Dakota Supreme Court; J.L. Larson of the pellee. It is very unwise not to give the
courts act as judges of judges. Error not Iowa Supreme Court; C. Donald Peterson best answer one has at the earliest op-
preserved in the trial court ordinarily of the Minnesota Supreme Court; and portunity. If there is a material point
will not be reviewed in the absence of Gerald M. Smith of the Missouri Court of you can't really answer, you should not
plain error. Appeals courts as a rule do Appeals. -M.H.B. have taken the appeal."
 prominent Arkansas lawyer represent- won that argument for you. Let's hear
ing the appellee stood up, corrected about the other issue."
one misstatement of fact by appellant's Good appellate manners may prove
counsel, and stated, "If it please the helpful. Many courts tape the oral
,court, I should be glad to answer any arguments for judges to reconsider
questions; otherwise, I am satisfied that while preparing the opinion. In an-
the court clearly understands the issues swering questions, therefore, counsel
judges and advocates speak of "going in this case." There were no questions, might address the judge by name to
for the jugular." That phrase may typify he sat down, and the court reached a identify the questioner. Counsel also
the essence of effective oral advocacy. decision in his favor. I am told that he might repeat the question, for on occa-
To me, it means that at the heart of collected a magnificent fee for his ef- sion the sound recording equipment
every important issue are legal, factual, fort, which illustrates the adage: If will not pick up the question of a soft-
and equitable or policy reasons that speech is silver, silence may be golden. spoken judge. Good manners thus may
support, explain, and strengthen the Questions! I suspect that some law- serve counsel's cause after oral argu-
advocate's position and demonstrate yers find oral argument a disconcerting ment.
the illogic or injustice of any contrary and bewildering experience when
view. In the A-B-C case, for example, I, judges interrupt with questions. Yet, rNZ 7
as a judge, would be influenced by Ap- questions represent matters that are
pellant B, who would remind me that troublesome to the court and should be
the jury serves as the trier of the facts answered briefly and at once. After an-
and, therefore, should have been in- swering the question, if at all possible,
structed on an accepted rule of law di- counsel should attempt to integrate the
rectly applicable to the factual circum- question and its answer into the central
stances present in the case. By the same theme of his or her argument. Walter F.
token, I would listen carefully to Ap- Rogosheske, who served with great dis-
pellee C's plea that the evidence did not tinction on the Minnesota trial bench
warrant issuance of the requested in- and later on the Supreme Court of Min- Be interesting, and be innovative!
struction, for at the crucial moment that nesota, observed in a recent conversa- Arguments supplemented by demon-
B pulled into the passing lane, C had tion with me on the subject of appellate stration may be helpful in a complex
drawn even with B and thus neither advocacy: "We talked about where a case. One of the fine presentations in
vehicle could be characterized as the lawyer was distressed about a question, our court occurred in a complex patent
forward vehicle within the meaning of it interrupted his train of argument, and case in which counsel showed us a
the instruction. I also would consider he didn't have the full appreciation that two-minute movie of the patent appara-
Appellee C's contention that any error that very question the judge was asking tus, a haystack mover, in actual opera-
in refusing the requested instruction is going to be the thing that the judge tion. The ancient adage proved true:-
amounted to harmless error in light of will be talking about in conference, and A picture is worth a thousand words.
the instructions as a whole, which what counsel ought to do is jump for
properly defined negligence and the joy that some judge has asked a ques-
general rules of the road. tion."
All of these contentions, inci-
dentally, could be easily presented and
explained in about ten minutes per
side. Then, for goodness sake, sit down!
In the words of a colleague who finally
7
tired of listening to a lawyer continue
his argument beyond any useful point,
"Don't snatch defeat from the jaws of

,(A*
victory."
-' : /. Z..
My colleagues and I believe it to be a
great mistake for two advocates to
argue for the same party-one to argue
Be flexible in argument. Listen to some issues, the second to argue the
questions asked of your opponent. If remaining issues. What invariably
material and essential to the decision, happens is that the court will question
give your answer to that question in one counsel on an issue that the second
your responsive argument. If not mate- counsel intended to argue. Itis a lame
rial or essential, however, don't beat a response to say, "Ahem, my cocounsel
dead horse. Example: The appellant will answer that question." Often
I must say that one of the most effec- argues that the trial court's findings of cocounsel does not do so because of
tive arguments that I have heard was fact are clearly erroneous. The argu- time restraints. Recently in a Title VII
one of the shortest. After the appellant's ment seems not to have impressed the sex discrimination appeal, one lawyer,
counsel had argued the case, it had be- court. Should you make an extensive a male, got so wrapped up in the first
come quite obvious that the members of response to it? Clearly, no. In a recent issue in the appeal that he nearly
the court disagreed with appellant's case counsel began to do so. One of my ousted the second lawyer, a female col-
views on the merits of the appeal. A colleagues remarked: "Counsel, we league, from time to argue the second
issue. We suggested to the first lawyer Fourth Circuit writes: "In a significant court learned was that at the noon re-
that he sit down, or he'd be guilty of sex number of cases it has a decisive effect cess, there were four female jurors all
discrimination! on my vote." eating lunch together. The alternate
eJustice Rogosheske concludes: "Oral told the other three women jurors that
argument puts the judge on the spot. It on the first day of trial a black woman
heightens the judge's sense of personal had spoken, and in my reading of the
responsibility. It tests his [the judge's] transcript, I think she clearly indicates
own thinking in a direct way .. and I would like to cite the court to
There's just no substitute for having page 49 of the transcript, where the
oral argument." alternate clearly states that she believed
During a recent session of our court, I the person was talking directly to her.
made a personal observation on the in- and the substance of the remark was
fluence of oral argument on my that you, the jury, better come back
decision-making process. In my opin- with the right decision.
ion oral argument directly affected my "The law is very clear in my mind.
Perhaps my next suggestions may views in five of 16 cases-about 30 per Any private communication, any pri-
seem unnecessary, but the more I listen cent of the appeals. You can bet your vate communication is presumptively
to oral arguments the more I realize that life that oral argument is important! prejudicial and the burden rests heavily
lawyers often neglect to look up and on the government to establish that that
speak up. Effective advocacy also calls contact or communication was harm-
for a natural and sincere style of speak- less."
ing. An impassioned oration usually
does not persuade experienced judges.
At the same time, you need to believe in
your case to convince the court. Don't
become frightened like a rabbit on an
essential point and concede the issue
on receiving a negative reaction from a
judge. In the federal courts two other
judges may support your position, and At a recent session of our court, a
in state courts even more judges may young lawyer made an impressive oral
participate in the decision making. So argument-impressive in its organiza-
if a judge suggests, "Counsel, that tion, content, and format. His argument Thus, counsel in a very short time
argument is just ridiculous," you might covered the issues, how they arose, the and in his own natural way presented
respond, "I respectfully disagree, Your underlying facts, and the applicable the issues and background in a clear-
Honor, and I trust that on further con- law. I restate the substance of that ar- cut, effective manner. That is the task of
sideration you may change your mind." gument as an example of a good open- the advocate.
Finally, let me stress the crucial as- ing for an appellant's attorney. I summarize these principles in the
pect of oral argument. In most appellate "I have raised in my brief two issues "Ten Commandments of Oral Argu-
courts, the judges confer on the cases on appeal. First, that the jury was ment":
and vote to affirm or reverse on the threatened and that the trial judge's 1. Know your customer, the court.
same day as argument. In my experi- failure to grant a mistrial in light of that 2. A.B.P. -Always Be Prepared.
ence that tentative vote represents the threat denied my client his constitu- 3. Go for the jugular.
final decision in 80 to 90 per cent of the tional rights to a fair trial. Second, I've 4. Questions, questions, good and
cases. Oral argument thus constitutes raised the sufficiency of the evidence, it bad. Answer directly, then return to
the advocate's last chance to convince being briefly my position that the de- your main theme.
the court of the rightness and justice of fendant was convicted because of the 5. Be flexible and innovative.
his other cause. testimony of an accomplice, testimony 6. One lawyer is better than two.
Here are comments in letters to and which I did not feel was believable, and 7. Look up, speak up.
conversations with me: that the trial court should have granted 8. Don't snatch defeat from the jaws
*justice Blackmun observes: "It is not my motion for an acquittal. of victory.
rare that a justice says in conference "On what I would characterize as the 9. Believe in your case and be natu-
that oral argument turned me around." jury threat issue, I'd like to cover some ral.
*judge Alfred T. Goodwin of the facts because I think it's very important 10. Above all, don't kid yourself. Oral
Ninth Circuit put it this way: "I see the to understand the factual circum- argument is important; indeed, it may
oral argument as the last clear chance stances of how this came to the trial be crucial.
for judges to get answers to the ques- judge and how it was treated. I'll see you in court!
tions that must haunt conscientious "During the trial, on the fourth day,
judges while they are reading briefs in we were preparing for closing argu- (Myron H. Bright practiced law in
complex cases." ment after a jury instruction confer- Fargo, North Dakota, before his ap-
*judge George E. MacKinnon, sitting ence. The prosecutor informed the pointment to the United States Court of
on the D.C. Circuit, advises: "It [oral judge that a jury person had indicated Appeals for the Eighth Circuit in 1968.
argument ] can be very valuable or use- there had been someone talking to the He wishes to acknowledge the editing
less. It can win a case or lose one." jury. The court proceeded to develop assistance of Wayne D. Struble in the
eJudge John D. Butzner, Jr., of the the factual circumstances. What the preparation of this article.)