In his 1932 biography of Irish lawyer Sir Edward Henry Carson, Carson the Advocate, author Edward Marjoribanks portrays his hero’s gift of poise with this courtroom anecdote:
“After hearing Carson for a while, Justice Lawson blurted out, roughly, ‘Mr. Carson, you’ve got no case.’ Carson, unperturbed, continued for another twenty minutes, only to be interrupted again by Justice Lawson, ‘Mr. Carson, I say you’ve got no case.’ Carson then turned politely to Lawson with that grim dignity of his, which was powerful, even in so young a man, ‘My lord,’ he said, ‘I heard you say that twenty minutes ago and knew it would be useless to argue the merits of my case with your lordship. Since then I have not addressed one word to your lordship; I’ve been addressing the other judges, and may I be allowed to go on without your lordship’s interruptions’?”
While the great Carson’s approach may not be your cup of tea, or, for that matter, a serving our appellate judges would take kindly to, Carson’s response illustrates the ingenuity of the appellate advocate who is repeatedly distracted by a member of the appellate panel.
Certainly, holding your own against an adversarial panel of jurists demands quick thinking and assurance. Innate or not, the virtues that save you in appeals court are enhanced through hard work, preparation, and a keen-eyed mastery of the legal principles in play.
Like so much else in life, preparation for oral argument starts early, with the writing of the brief. Careful review of the record and analysis of the facts and legal issues presented will help ready you for the big day. If you haven’t laid the groundwork for success in your brief, you essentially walk up to the plate with two strikes against you.
Which is not to say that the oral argument should be a rehashing of what the judges have already read. Your presentation should emphasize the strongest point of your case or selected points that need no clarification. Of course, never read from the brief. In a limited amount of time you cannot hope to cover every point. Detailed analysis or excessive summary of the facts will bog down your presentation.
Strongly consider practicing in a “moot court” session, after which colleagues may identify soft spots and pitfalls that could lead to disaster in court. Often the questions your friends ask will be the very ones posed by the judges.
All this preparation should aid you in engaging in persuasive dialogue with the court, the most important part of the oral argument. A distinguishing characteristic of an accomplished advocate is the ability to master the technique of responding to questions and then proceeding with the theme of the argument.
There are those who resent interruptions, but it is truly the most important phase of the process. It is a time when the court questions counsel about the implications of the point advanced or the cogency of the case. It is a time when counsel explains to the court the strength of his client’s position and the weakness of the adversary’s position. Most questions from the bench are serious and probing. Rarely does a judge interrupt counsel in the manner of Justice Lawson.
The great challenge of dialoguing with the court lies not only in responding with precision and succinctness, but also in the ability to proceed to the next point in the development of the case. Only by using each question to advance the overall arc of the argument will the advocate cover all selected points within the time limits.
A way to meet this challenge is to explain to the court what you intend to argue, and to follow this outline to a conclusion. This approach helps you to maintain a consistent theme during the course of the dialogue. It helps you establish a frame of reference to which you can return, all the while continuing to elaborate. Be careful not to postpone answering a question when it is asked. The court’s inquiry should telegraph a message: “Here lies a possible problem.” If you don’t resolve the problem immediately, you run the risk of losing the court’s attention or support.
The illustration below may be helpful. The diagrams depict the proper and improper development of oral argument. The vertical axis represents the theme of the advocate. The jagged, horizontal lines represent the questions by the court, the response of the advocate, and the return to the theme.
The line that does not return to the theme illustrates the plight of counsel who answers a question, then becomes confused or distracted and wanders aimlessly, responding to the judges but not arguing. Frequently, you will find that one question leads into the next point within your theme, or you may be able to work into your answer a transition to the next point.
You, and not the court, should control the oral argument. Control does not mean that you proceed with a carefully planned argument regardless of queries the court throws in your path. You must maintain flexibility. If you come to court with two issues to present on appeal, and the court expresses no interest in the first issue, but locks onto the second, you may want to shift your approach on a dime. You may wish to focus on the second point, no matter your initial plan. In some instances it may be appropriate to stick to your guns.
Bear in mind that the time period of oral arguments is strictly regulated. When your time runs out, do not continue unless the court asks for more. If time elapses in the midst of your presentation or a response to a question, quickly conclude and take your seat.
Hopefully, by then your painstaking preparation will have paid off and even a Justice Lawson will have failed to throw you off course. For even lawyers not gifted in poise can succeed brilliantly before the appellate court if they are prepared and maintain flexibility.