Three of the Supreme Court’s top litigators with dozens of High Court oral arguments under their belts – Walter E. Dellinger III, Jeffrey L. Fisher and Thomas C. Goldstein – spoke with Lawyers USA’s Kimberly Atkins, offering appellate practice tips and giving the advice they wish they had when they were budding appellate lawyers:
Challenge your case.
“[The] brief still matters more than oral arguments, no matter what court you are in,” said Fisher, co-director of Stanford Law School’s Supreme Court Litigation Clinic. “In my clinic we do moot courts now before we file our reply briefs. Nothing is more painful than someone bringing up an alternative way of [making an argument] that you never thought of before during a moot court, and it’s a week or two before oral argument. … It’s always better to have those things addressed in your brief than to rely on oral argument to get your points across.”
Keep it simple, Counsel.
“I think one mistake lawyers make in brief writing is they think that the most sophisticated, nuanced argument is the one that will carry the day instead of the one that seems the most straightforward and simple,” Fisher said. “A good brief is one that seems straightforward, and intuitive and common sensical, not the one where the writer is trying to show how smart he or she is.”
Think about the oral argument.
Goldstein, founding partner of Goldstein, Howe & Russell, and founder and publisher of SCOTUSblog, said that “more and more” he keeps the oral argument in mind at the briefing stage.
“It does drive your brief,” Goldstein said. “When you begin preparing for a case, you think of it [as a script] and you can see it from the beginning of the movie when you write the brief, to the middle of the movie when you have oral argument, to the end of the movie when they are writing the opinion.”
And the brief must contain everything you rely on at oral argument.
“If [you] need to point out a statute or a finding, you have to have it [in the brief] where you can quote it,” Goldstein said.
Remember the big picture.
“For young lawyers, you just have to remember in appellate court, your job is to win the case for your client, but the court looks at your case in a broader way,” Fisher said. “You need to understand how your case [fits] in the broader doctrine and how the ruling will affect other cases.”
“You need to really show the court that you are engaged with the other side – that you understand what the other side’s argument is as well as the argument of the court below,” Fisher said. “I’ve heard judges say that the briefs from each side of a case [sometimes seem like] like two ships passing in the night.”
The oral argument
Don’t argue. Persuade.
“People tend to take the phrase ‘oral argument’ too much to heart. They really think that they are arguing,” Goldstein said. “[The judge] is the decision maker, and why would you want to get into an argument with [him or her] is beyond me.”
Be realistic in your expectations of what you can achieve during an argument.
“When I first started, I thought I could persuade everybody,” Goldstein said. “You have to be much more modest in thinking about what you can hope to accomplish in an oral argument. You have to realize that you are there to talk about what [the judges] want to talk about, not what you think is important.”
It’s also important to know when to concede a weak point in your case and move on to the stronger ones.
“Remember, the ultimate goal is to have the court rule in favor your client, not to win on every point,” said Dellinger, a partner in the Washington office of O’Melveny & Myers, head of the Harvard/O’Melveny Supreme Court and Appellate Practice Clinic and former acting U.S. solicitor general.
Listen to Fisher answer a question from Justice Ruth Bader Ginsburg, and get an assist from Justice Antonin Scalia, during oral arguments in Bullcoming v. New Mexico.[audio:http://lawyersusaonline.com/files/2011/07/GinsburgFisherScalia.mp3]
“It’s very helpful to have moot courts with people who have not been involved in the case, and who are brought in to be skeptical of your position,” Dellinger said. “It’s so easy for you to work on a case not thinking about what the weak points are in your argument. Someone from the outside who has been brought in to be very aggressive can be very helpful.”
Goldstein said he is currently in the process of listening to every oral argument from the Supreme Court’s 2010 term and charting the justices’ questions to help prepare for future cases.
“You have the really know the court” you are arguing before, Goldstein said. “You have to figure out why it is that that [judge] asked that question. Is it because they don’t understand the case, or are they being an advocate? You have to be very adaptable to the circumstances.”
Listen to Goldstein use the record – and the opponent’s own words – to make his case during oral arguments in Sorrell v. IMS Health.[audio:http://lawyersusaonline.com/files/2011/07/GoldsteinMarketplace1.mp3]
“What I’ve learned over time is that candor is critical with a court,” Dellinger said. “It’s important to acknowledge that your position can have adverse consequences and be candid about that, and express why the court should rule in your favor nonetheless.”
The straightforward answer is always best, he said.
“I learned over the years that it is very helpful to begin your answer to each question with a ‘yes’ or a ‘no,’ and then explain after that,” said Dellinger. “Practice doing that rather than trying to build up to your answer. Give them the bottom line answer first. This lets the court know you are not going to dodge the question. Even when that is not the most helpful answer, you go on to explain why it is not fatal to your case.
“If the judge asks if there are any other cases that support your position, if the answer is no, say so. Say: ‘No, this would be the first case to support the position I’m arguing. Nonetheless, I think it is correct, and here is why the court should decide this way in this instance,’” Dellinger said.
Be responsive, but not pushy.
“Oral argument [is for] answering the questions of the court, not forcing the court to listen to your argument that they already read in your brief,” Dellinger said. “Trying to gain control of the argument is a mistake.”
“What you are going for,” said Goldstein, “is a conversation with the [judges]. You are trying to generate a dinner table conversation where there is an interesting set of points, with people making comments to each other that are informative, and that can sometimes be funny, and that is intimate. You want to draw them out and make them happy to hear from you.”
Listen to Fisher handle a hypothetical from Justice Stephen Breyer and a tough follow-up question from Justice Anthony Kennedy during oral arguments in Bullcoming v. New Mexico.[audio:http://lawyersusaonline.com/files/2011/07/BreyerFisherKennedy1.mp3]
“One thing that I always say for oral arguments is you should welcome the questions,” Fisher said. “The questions are your greatest insight into the judges’ minds. A lot of people prepare for oral arguments constantly worried about what judges may ask. I approach arguments eager to see the way the judges are thinking. That mindset has shifted for me over time. You understand more that the brief writing is your time, but the oral argument is their time.”
And let the judges lead. “It’s better to be in a conversation where you talk about what the judges want to talk about, which means you ought to be listening to what the judges want to talk about,” Dellinger said.
Listen to Goldstein use a question posed by Chief Justice John G. Roberts to make his point during oral arguments in Sorrell v. IMS Health.[audio:http://lawyersusaonline.com/files/2011/07/RobertsGoldstein.mp3]
Don’t be funny – unless you know what you’re doing.
Injecting humor into an argument may be tempting, but it comes with some potential pitfalls.
“It’s almost all pitfalls, really,” said Goldstein. “What you are really looking for is to give [the judges] the opportunity to be funny much more that you are looking for the opportunity to get a laugh.”
Listen to Goldstein use humor to answer Justice Sonia Sotomayor’s question during oral arguments in Sorrell v. IMS Health.[audio:http://lawyersusaonline.com/files/2011/07/SotomayorGoldstein.mp3]
When the bench is cold, sit down.
“If that is the case, then oral argument is unlikely to be very important,” Dellinger said. “Proceed to make the essential points, [and] if there are no further questions, sit down.”
– Kimberly Atkins