An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure
How to Win (or Not Lose) Your Appeal at Oral Argument
By Howard J. Bashman
Monday, November 12, 2001
Although appellate judges would agree that briefs play the most significant role in determining an appeal's outcome, the ability to deliver a winning oral argument remains an important tool in the appellate advocate's repertoire. To many lawyers, appellate oral argument can seem quite mysterious, and numerous lawyers at varying experience levels have sought my help over the years in making sure that they win (or at least do not lose) their appeals at oral argument. While there is no substitute for the experience of having argued multiple appeals, I can offer five generally applicable suggestions that I follow in my own oral argument preparations.
I had observed scores of appellate arguments as a law clerk to a Third Circuit judge, and somehow managed to win a prize in oratory as an undergraduate at Columbia College in the City of New York, and yet I was as befuddled as anyone about how best to prepare to deliver a strong oral argument when I first appeared nearly ten years ago before a panel of appellate judges. It took me about five appellate arguments before I finally felt confident that I was preparing for oral argument in the best way possible. One must be well prepared for appellate oral argument. A poorly prepared appellate advocate can lose a case at oral argument that he or she would have won based solely on the briefs.
My top five appellate oral argument tips are: (1) know why your case is being argued; (2) know the appellate judges assigned to your appeal and how they prepare; (3) know the facts and procedural history of your case better than anyone; (4) be prepared to state succinctly why your client should win; and (5) be prepared to respond forthrightly (and, if possible, persuasively) to questions about the most troublesome aspects of your case.
Know why your appeal is being argued:
The Supreme Court of the United States and the Supreme Court of Pennsylvania hear oral argument in nearly every case to be decided on the merits. Other appellate courts, such as the U.S. Court of Appeals for the Third Circuit and Pennsylvania's Superior and Commonwealth Courts, have too large of a caseload to hear oral argument in all cases.
In the Third Circuit, the judges on the panel assigned to decide an appeal determine whether oral argument will occur. Approximately six to eight weeks before oral argument is scheduled to occur, the Clerk's Office sends the briefs to the panel. Each case is preliminarily assigned to a panel member who has initial responsibility for deciding whether oral argument will occur in that case.
The Third Circuit judge with responsibility for performing the initial review of various cases reads through those briefs first to determine which appeals should be argued. If that judge concludes that oral argument should not be held in a case, and if neither of the other two panel members disagrees, the initially-assigned judge will have responsibility for preparing a draft decision disposing of that case. After the judges circulate their lists showing the cases initially assigned to them that they have selected for oral argument, the other two judges will then begin reading the briefs in the cases that their colleagues did not select to see whether they agree that those cases should not be argued.
A Third Circuit appeal will be argued if one judge on the panel requests argument, and thus argument indicates that at least one panel member has questions for counsel. The selection of an appeal for oral argument also may indicate that the panel member to whom the appeal was initially assigned for screening did not wish to be saddled with preparing an opinion in that case without having had the benefit of oral argument. Appeals that are argued are open for assignment to any panel member in the majority.
The Third Circuit's system generally results in only the most important and most complex cases being selected for oral argument. Simple cases, cases clearly controlled by existing law, and cases in which affirmance is clearly compelled are seldom among the cases orally argued at the Third Circuit.
In the Superior and Commonwealth Courts, by contrast, counsel for the parties to the appeal determine whether an appeal is argued. Unless the opposing parties agree that the appeal should not be argued, the case will be argued. This unfortunately causes the Superior and Commonwealth Courts to devote far too much of their oral argument time to the easy cases. It also can make for an excruciatingly long day, from the appellate advocate's perspective, of sitting in the courtroom awaiting the call of your case.
Know the appellate judges assigned to your appeal and how they prepare:
Most appellate judges prepare for oral argument in basically the same manner. First, the judge reads the opinion or other explanation that the lower court or administrative agency offered for the orders or judgment under review. Next, the judge reads the parties' briefs on appeal. One of the judge's law clerks prepares a bench memorandum summarizing the facts, the relevant procedural history, the issues, and the parties' arguments on each point. The bench memo may also supply the judge with the law clerk's recommended ruling and with photocopies of key cases and key portions of the record.
It is especially important to learn as much relevant information as you can about the judges assigned to decide your case. To do that, you need to know which judges will decide your appeal. This is quite easy if your oral argument will occur in the U.S. Supreme Court or the Pennsylvania Supreme Court. The Superior Court has also made it easy, providing at its Web site a year's worth of sitting dates and the judges assigned to each panel.
It is a bit more difficult to learn far in advance the identities of the judges who will decide your appeal if it is pending before a three-judge panel in the Third Circuit. The Third Circuit's Pacer docket entries, until recently, disclosed the initials of the judges on the panel as soon as a case was noted as having been calendared, usually about six weeks before oral argument. The Pacer docket entries appear to have been redesigned recently to omit this early disclosure. Thus, attorneys with appeals pending before the Third Circuit may be back to having only ten days' advance notice of the panel's identity. (The Pacer system offers another way to determine a panel's identity before the Clerk's Office finally provides notice, but this method is so complicated that it does not merit discussion here.)
Once you know which judges will be hearing your oral argument, you should look to see whether any of them wrote (or were on panels that wrote) prior decisions bearing on the outcome of your appeal. Some judges may be quite expert in the subject matter of your case, while others may know little to nothing about it. You should also learn about the style of questioning, level of preparation, general disposition toward the issues you will be arguing, and other relevant characteristics of each judge on your panel.
Know the facts and procedural history of your case better than anyone:
Whether you have begun working on a case at the time of appeal, as I often do, or have lived with a case since the day your client first consulted a lawyer for assistance, when you reach the podium you must know the facts and procedural history of your case better than anyone.
If a judge asks you about the facts or procedural history and your answer is "I don't know" or, even worse, "I don't know because I wasn't the lawyer handling the case then," you have done your client a great disservice. Sometimes an unanticipated factual or procedural question may catch even the best prepared appellate advocate by surprise. In that instance, the lawyer should offer to supply the court with a one- or two-paragraph answering letter immediately upon return to the office.
In appeals that are factually or procedurally complex, appellate judges may have many questions about the facts or procedural history. Appellate judges have many cases to decide and few law clerks to assist them. The more complicated a case is, the better prepared the appellate advocate must be to answer the judges' factual and procedural questions.
In every appeal, the appellant's attorney must be prepared to explain the basis for the court's appellate jurisdiction. Issues of appellate jurisdiction cannot be waived by the parties, and an appellate court cannot rule in an appeal over which it lacks appellate jurisdiction even if the parties would prefer a ruling on the merits. In cases pending on appeal in federal court, counsel should also be prepared to address the basis of the trial court's subject matter jurisdiction.
Be prepared to state succinctly why your client should win:
Whether your appellate brief is lengthy or short, you will not have sufficient time at oral argument to review every reason why the court should rule in your client's favor. When preparing to give your argument, you should therefore distill your central message into as succinct of a presentation as possible.
If you are representing the appellant, usually you will have at least a few moments of uninterrupted time at the outset of your argument to make a point. Use that time to state why your client wins. When representing the appellee, you should retain flexibility to begin your argument with whatever subject seems best depending on what has occurred during your adversary's presentation.
Far too many experienced advocates appear taken by surprise when asked at oral argument: "How would you phrase the rule of law that you want the Court to announce in this appeal?" No lawyer should reach the podium without knowing what his or her answer will be to that question. Your inability to answer this question persuasively and concisely could cause the court to rule for the opposing party. Also, be prepared to address how the ruling you seek will apply to hypothetical cases presenting somewhat different facts.
Most appeals involve more than one issue and more than one argument. Issues and arguments that are of lesser importance can be omitted from discussion without the fear of waiver as long as you do not tell the court that the reason you are not addressing something is because you are abandoning the point.
Be prepared to respond forthrightly (and, if possible, persuasively) to questions about the most troublesome aspects of your case:
It is the rare appeal in which your client's position has no vulnerabilities. Because your goal should be to anticipate every helpful, hostile or indifferent question that you could receive at oral argument, you should begin making a list of the most problematic issues in your case early in your preparations. To do so, read the parties' briefs and identify your adversary's strongest, and your client's weakest, points. Read the key cases on which the parties rely, and perform additional research to see whether any new helpful or harmful decisions have issued since the briefs were filed.
Once you have a list of the difficult questions you are likely to face at oral argument, begin to formulate the most persuasive and succinct responses you can. Do not attempt to brush off, ignore or postpone any question that you receive at oral argument. It will only make the questioning judge angry with you. If you begin thinking about the hard questions sufficiently far in advance of oral argument, you will usually be able to answer them in a way that minimizes or negates their adverse impact on your case.
This article is reprinted with permission from the November 12, 2001 issue of The Legal Intelligencer © 2001 NLP IP Company.
Remarks of Howard J. Bashman at Portrait Presentation Honoring Third Circuit Judge William D. Hutchinson at a Ceremonial En Banc Sitting of the U.S. Court of Appeals for the Third Circuit on Friday November 2, 2001
Today's portrait presentation ceremony is a joyful occasion for the law clerks of William D. Hutchinson. Some of us worked for Justice Hutchinson from 1982 through 1987 during his tenure on the Supreme Court of Pennsylvania. Others of us worked for Judge Hutchinson on the U.S. Court of Appeals for the Third Circuit, where he served from 1987 until his untimely death in October of 1995.
The two years that I served as Judge Hutchinson's law clerk, from August of 1989 through August of 1991, were two of the most interesting and most enjoyable years of my life.
Judge Hutchinson was born in 1932 in Minersville, Schuylkill County, Pennsylvania. After attending college in Bethlehem, Pennsylvania and law school in Cambridge, Massachusetts, he returned home to practice law in Pottsville, Pennsylvania, the county seat of Schuylkill County. Five years later he became an assistant district attorney for Schuylkill County and then, six years after that, served as County Solicitor. In 1972, he was elected to the Pennsylvania House of Representatives. He served in the Pennsylvania Legislature for the next ten years, representing the area of Pennsylvania where he was born and which he loved so much. In 1981, he ran for election to fill a vacancy on the Supreme Court of Pennsylvania. After winning the election, Justice Hutchinson quickly developed a well-earned reputation for being one of the best and the brightest justices serving on that Court. He had his local chambers in the Schuylkill County Courthouse in Pottsville. That Courthouse sits majestically high on a hillside there.
Justice Hutchinson's exemplary work as an appellate jurist caused President Reagan to nominate him in 1987 to fill a vacancy on the U.S. Court of Appeals for the Third Circuit. Judge Hutchinson then became the first and so far only Third Circuit judge to have his chambers in Pottsville. Those chambers were on the ground floor of a Victorian structure located in Pottsville's historic Garfield Square.
History was a topic that was near and dear to Judge Hutchinson's heart, and his place in the history of the Third Circuit deserves mention.
While the Third Circuit, as a geographical unit, traces its history back to the Judiciary Act of 1801, the U.S. Court of Appeals for the Third Circuit did not come into existence until 90 years later. In 1891, Congress passed the Evarts Act, which created the U.S. Circuit Courts of Appeals, including the Third Circuit Court of Appeals based in Philadelphia.
Between 1891 and today, fifty-six judges have served on the Third Circuit. Judge Hutchinson was the forty-fourth member of this Court. The seat that Judge Hutchinson occupied on the Third Circuit was one of the two original judgeships that Congress created on the Court in 1891. The judges who have held this seat on the Third Circuit are, in chronological order, George Mifflin Dallas of Philadelphia, William M. Lanning of Trenton, John B. McPherson of Harrisburg, Thomas G. Haight of Jersey City, John Warren Davis of New Jersey, Charles Alvin Jones of Pittsburgh, Harry Kalodner of Philadelphia, Arlin Adams of Philadelphia, and, currently, Judge Marjorie Rendell of Philadelphia.
Judge Hutchinson was only the second person to have served both as a Judge on the Third Circuit and as a Justice on the Supreme Court of Pennsylvania. The other was the aforementioned Charles Alvin Jones, who left the Third Circuit in 1944 to take a seat on the Supreme Court of Pennsylvania, where he served as Justice and later as Chief Justice of that Court.
During Judge Hutchinson's fourteen years as an appellate jurist, he wrote some 324 published majority or plurality opinions, 125 while serving on the Supreme Court of Pennsylvania and another 199 while serving on the Third Circuit. And, those totals do not include Judge Hutchinson's concurring or dissenting opinions, nor do they include the per curiam or unpublished opinions that he wrote.
Judge Hutchinson's opinions demonstrate that he worked tirelessly to reach the result that the law demanded, even when that required him to put aside matters of personal preference. His written opinions also reflect that Judge Hutchinson has considered and addressed the losing party's arguments or has explained clearly why those arguments cannot be addressed on the merits.
Over the years, as the Third Circuit's workload grew larger and larger, and the Court often did not have its full complement of active judges, Judge Hutchinson always ensured that every case and every motion assigned to him received his close personal attention. Judge Hutchinson recognized that sometimes one judge on a panel will spot an issue, or notice a flaw in a proposed outcome, that the other two judges did not see. I can remember many occasions where Judge Hutchinson caused his colleagues on a panel to reconsider the result they had tentatively reached and to arrive, instead, at a different, even more correct, result. Of course, Judge Hutchinson greatly appreciated the reciprocal attention that other judges paid to his work to make sure that his reasoning and proposed disposition were correct. Judge Hutchinson should be remembered for his attention to detail, and for his belief that no litigant, and no appeal, was too inconsequential to receive anything less than his full attention.
Moments from now, Judge Hutchinson's portrait will be presented to this Court. Judge Hutchinson's wife and family, his law clerks, and the Third Circuit Historical Society and Circuit Executive's Office all deserve recognition for their contributions and hard work that have made today's portrait presentation ceremony possible.
Family was very important to Judge Hutchinson, and he treated his law clerks as though they were a part of his extended family. Indeed, Judge Hutchinson always made his law clerks' spouses and children feel most welcome at his annual clerkship gatherings and whenever else they were in his presence. Happily, Mrs. Hutchinson has continued to hold gatherings for the law clerks and their families each year.
Judge Hutchinson would be very pleased to learn of the achievements of his law clerks, many of whom have developed into talented appellate advocates. Some are today working as partners or senior associates in large or small firms that span from California to New York and from north to south. Others work for the government, either as prosecutors or as public defenders. Some work directly to further the public interest. For example, one works in the Staff Attorney's Office of the Third Circuit, and another serves as senior counsel to the United States Senate's Judiciary Committee.
Being an appellate judge can be something of a lonely endeavor, especially for someone who loved to interact with people as Judge Hutchinson did, but it was obvious that there was no other job that Judge Hutchinson would have preferred to be doing. He had scaled to the greatest heights of his profession without abandoning either the values that led him there or the region of Pennsylvania that he called home.
I can say without any hesitation that clerking for Judge Hutchinson was the best career choice I ever made. The clerkship introduced me to the practice of appellate litigation, which I have made the focus of my career as an attorney. The clerkship allowed me to work closely with a wonderful jurist who thereafter remained a good friend. And, the clerkship introduced me to co-clerks who ten years later are still among my closest friends.
Judge Hutchinson's judicial opinions, his portrait, and the careers of those who have learned by working at his side will collectively prove to be the legacy of his many years of work on the Third Circuit and the Supreme Court of Pennsylvania. It is a legacy for which we should all feel very thankful and very proud.