Commentary: How to be effective at appellate oral argument

Appellate oral argument is fundamentally different from closing argument at a jury trial. In appellate oral argument, the goal is to make a purely legal argument to a panel of judges about why the lower court either correctly or incorrectly interpreted the law. A closing argument to a jury, on the other hand, is almost entirely — and rightly — based on making emotional and other related arguments to a group of jurors to accept a particular version of the facts. Yet despite this difference, many lawyers conducting appellate oral arguments make what amounts to a closing argument before a jury. This is a grave mistake.

So what does a good appellate oral argument look like? And how should a lawyer prepare for oral argument on an appeal? First and foremost, a lawyer should keep in mind what not to do — it is almost never proper to make emotional arguments about the client’s supposed plight on an appeal. While emotion can play a small role in an appeal, it is never a good idea to make it the primary focus of oral argument.

Rather than emotion, oral argument should primarily focus on whether the trial court properly applied the law. In preparing for oral argument, counsel must have the record down cold. The lawyer presenting oral argument must be intimately familiar with all the relevant facts of the case and procedural history from below and must be prepared to answer any questions the panel may have about what actually happened before the trial court. This goes just as well for the caselaw that is important to the appeal. Counsel must be prepared to discuss all relevant caselaw in intimate detail. Failure to do so will not impress the panel.

Just as important as what to prepare for in the context of oral argument is how to present oral argument. It is never appropriate to approach the podium and simply read from a prepared speech. Rather, counsel should make an outline of the main points that he or she wants to convey to the panel. The outline should not be long, but at the same time it should be detailed enough to serve as a quick reference to any critical parts of the record or caselaw that counsel believes should be handy in the event the panel asks any questions.

Direct eye contact with the panel is critical. The panel is expecting the advocate to be able to elaborate on the arguments made in the brief and to be able to assist them in coming to the correct conclusion about the case. They expect the advocate to engage in a dialogue with them about the legal matters at issue. If the advocate fails to make regular eye contact with the panel, and instead simply recites from a prepared speech, he or she will not be doing the client any favors.

But at the same time, there is nothing wrong with having an “opener” for oral argument —that is, prepared remarks of about 30 seconds to begin the case. An effective appellate advocate will memorize the opener so that there is no need to look at the podium at the start of oral argument. It is not necessary — indeed, it is counterproductive — to recite the procedural history or facts of the case. By this point, the panel will have read the briefs and will know all of these details, and it is a waste of time to repeat the case background to the panel. Rather, the opener should summarize what relief the advocate is looking for and why such relief is appropriate.

Finally, a good appellate advocate will be prepared for — and expect — interruptions from the panel and questions about matters totally unrelated to what may be in the opener or the outline. Counsel must be prepared to answer such questions directly, without dodging them or appearing annoyed that the panel has interrupted the argument. Having answered the questions, counsel must then know how to pivot back to the original line of argument.

Oral argument plays a critical role in the appellate process. A good appellate lawyer will know how to use it to the client’s advantage. Taking the above actions will help make oral arguments more effective.