Remember, for Every Case Won at Oral Argument, the Other Side Loses
by Justice Michael J. Wilkins
As I sat through another oral argument before the Utah Supreme Court last month, I began to wonder if I could list the characteristics that differentiate the most successful advocates before our court from the least successful. I smiled to myself, and thought, "Well, the first characteristic is that they don't let me drift off mentally when they are at the podium." After the calendar concluded, I jotted down a few thoughts for my own amusement. As the list developed on paper, I realized that these were suggestions that I wish someone had given me when I was still on the other side of the bench. They apply nearly as well to the trial courts, and seem only common sense to me now that I have been privileged to participate in the court's side of appellate arguments for ten years. I offer them to you for what use you may be able to make of them.
Suggestion 1. Remember why you are here.
Before our court, the single most important purpose of oral argument is to answer questions the justices have about the case and the impact our decision will have on the law. The second most important purpose is to remind us of the important and most compelling elements of your argument that you have already carefully detailed in your brief. The third purpose, time permitting, is to explain any apparent confusion that may have arisen from the contrast of your brief and that of your opponent, or in the course of oral argument.
On the other hand, we are not judging a debate, and you get no points for destroying either your opponent, or your opponent's argument. Oral argument is not a contest. Oral argument is not a chance for you to muse, or lecture, or argue, with the justices. It is also not a good idea to plan on showing off for your client, the audience, or the press. None of them have a vote on the outcome of your case. Only we do.
Suggestion 2. Assume we are well prepared.
Don't waste your time, or ours, repeating the facts of the case unless the facts are both confusing and central to the success of your case. Be prepared to address the legal issues not only as they apply to your case, but as they may impact others if we decide in your favor. You may safely assume that we have read the briefs, are thoroughly familiar with the facts and issues, and want you to assist us in understanding how the case should be resolved. We don't "do" facts. Even challenges to factual findings or sufficiency of the evidence claims are questions of law to us.
Suggestion 3. Treat questions as an insight into our individual thinking.
If we ask no questions, that doesn't mean you were brilliant. You should be able to tell how engaged we are in your argument. If you're doing well, we may let you develop the case in your own way. We recognize that you certainly have more insight, and sheer time into the case than we do. On the other hand, questions from us are not necessarily a sign that your argument or briefing are somehow deficient, at least, not necessarily. We ask questions for any one of a number of reasons. We may simply need an answer. We may want to eliminate some idea or contention from our personal consideration. We may want to prod you toward something we consider more important to the outcome of the case. We may want your thoughts on how a rule of law you propose will impact others. We may want to offer an alternative way of looking at an issue to both you and a colleague on the bench.
Sometimes, I ask questions because I'm bored. I doubt my colleagues ever do that, but I do. Please forgive me if I do it to you. Oh, and if you want to score points with our law clerks, in response to any question I ask, say, "That's a good question, your honor." I habitually reply, "I know. That's why I asked it." The law clerks get a good chuckle out of it, although you have probably wasted a few precious seconds.
Finally, recognize that if one of us asks a question, we probably want an answer. Do your best. If you don't know, say so and move on. If you know, answer it. Occasionally a lawyer will put the question off, planning to address it later. That is usually a mistake. Putting the judge off means the judge is sitting there still thinking about it while you go on. Also, often a question put off never comes back. You run out of time, or other questions intervene. I once began a question with an apology for interrupting counsel's argument. He turned to me and said that he was happy to answer it, since whatever interested the court interested him. That is a winning attitude.
Suggestion 4. Check your attitude at the door.
I cannot understand the logic that compels some advocates before us to use the few minutes they have to advance the interests of their client to instead continue some personal dispute or contest with the opposing party or counsel. It doesn't help. It usually hurts.
The only thing worse than carrying on some perceived battle with opposing parties during oral argument, is to treat a member of the court with anything less than complete respect. Of course, we know that the positions we hold are the reason for the treatment afforded us. Of course we know that not all of our opinions or other utterances are greeted with universal acclaim. And of course we know that you may be perfectly justified in your unhappiness with one or more of us. But, don't be misled into thinking that an affront to the court as an institution goes unnoticed by any of us. We try to respect the roles we temporarily occupy, and expect officers of the court to do the same.
Civility and professionalism are the rule, not the exception, in our court. We have become more and more likely to remind you from the bench of any lapse - in front of your client, the press, and anyone else who happens to be in the room. Don't risk it.
Suggestion 5. Make our jobs easier.
As you plan and prepare your brief, and your argument, realize that we have other cases before us. We cannot develop the same degree of familiarity with your case as you. In oral argument, as in the briefs, try to follow a logical, predictable, simple pattern of organization. Realize that you may not get to your second point because of our questions. Start with the most case-determinative elements of your argument. Don't make arguments that you know are dead on arrival. If the law generally goes against you, realize that we already know that. Deal with it up front. Try to build an oral presentation that leads as directly and logically to the result you believe is most appropriate. Think of yourself as the teacher of an AP History class; think of us as very smart 12th graders taking the class.
Suggestion 6. The time you waste is ours.
We allow 20 minutes per side in oral argument. The court of appeals allows 15. Other matters are waiting. If you can fully make your case in five or ten minutes, do it and sit down. If you don't understand our time keeping system, ask the clerk before court begins. If our clock reads "00" you are done, unless one of us is asking a question. We may not cut you off in mid- sentence, but we all have access to the time clock, and we notice. Plan for 15 minutes, not 20. Don't sum up again after the time is gone. We also have jobs to do, and the time you use beyond your own allotment has to come from someone else. It is usually ours, so why would you want to do that to the five (or three) people who are about to retire to the conference room down the hall and decide the fate of your case and your client?
Suggestion 7. Read the rules.
Unless you appear before us very regularly, you will avoid unnecessary problems by reading our rules each time you appear before, or submit something to, us. We try to express in them the way we actually do our business. Your observance of the rules makes our lives easier. Trust me, you want us to smile inwardly when we see your name on the brief.
Suggestion 8. PowerPoint and other risks generally should be avoided.
We are an old fashioned court. Although we are all computer literate, and most of our work is now done electronically, our courtroom is probably not the place to demonstrate your technological skills. If you insist, be prepared to be interrupted during slide 5 with a question you thought you would address in slide 65. The same goes for charts and exhibits. Our bench is long, and curved. It is very difficult to use a board or easel in a way that all of us can see what you are pointing at. Copies for the bench are fine, but submit them in advance. Don't expect us to review them and listen to you at the same time. Moreover, you usually don't have the time for us to absorb a new document at that late hour. Surely you can figure out what we need to see in advance and put it in your brief.
Suggestion 9. Argue your case, not your opponent's.
The best advocates usually focus on their own arguments, and their own view of how we should resolve the case. If you spend all of your time, initially or on rebuttal, addressing your opponent's case, that is where you direct our attention, and where we will be focused.
Suggestion 10. Come prepared to enjoy yourself.
Come prepared, and you are much more likely to be able to enjoy the experience. We don't expect you to entertain us, but we do expect you to act like an officer of the court to the degree that we can see you are trying to assist us in understanding and resolving the issues of consequence. Believe me, we want you to succeed. We want to understand what your argument is. We want to benefit from your thoughtful exploration of the law, as it applies to your case and to others that will reap the consequences of our decision. If you do your job well, our jobs become much easier.
Keep your sense of humor. We know that the cases we hear and decide are important to you and your client. We know that the other side feels the same way. You may rely on our commitment to treat every case with the dignity all cases before the court of last resort deserve. At the same time, don't let the little things throw you off. Trust that the advocacy system really does work, and that with your help, and that of your opponent, we will get it as right as we are able.