Roundtable Discussion

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Wisconsin Law Journal: When you’re looking at a complex case and you’ve got a number of issues, how do you bring that down to a couple of key points? How do you determine which ones you’re going to focus on?

Thomas L. Shriner Jr.: I used to make jokes that this is a problem with patent lawyers in particular, that they’ve never seen an issue they want to give up. … I have seldom seen a patent appeal that didn’t start out with somebody saying here are 13 issues that have to be raised. And I just take it as a given, you can’t have that. I’ll say, "You can’t have more than four," or "You can’t have more than three."

How do you do that? You go through sometimes a contentious process where you bring it down to the three that are the best, and you just impose it. Obviously, it may have something to do with whether one of them gives you a complete relief on appeal as opposed to saving you $16,000 in costs or something like that.

I think that your job as an appellate lawyer is to hone in on what’s really there and go with that. I don’t think people can think about more than two or three things at one time — judges anymore than anyone else. I just think you’re doing your client an awful disservice to load up a bunch of issues. I think you’re announcing, "I don’t have anything good here," when you say "I’ve got six issues."

WLJ: Justice Sykes, can judges focus on more than three issues?

Justice Diane S. Sykes: A loaded question. We can, but we don’t like to. So I agree with what’s been said. Focus on your winning argument, and it depends on the nature of the case. … In many respects it’s the path of least resistance to the result you want.

If you’ve got an error correction kind of a case, or if you’ve got a law development case, it’s a different sort of analysis. It’s the same thing with writing judicial opinions too. Judges will obviously look for the cleanest way to decide a case without unnecessarily deciding issues if they don’t need to be decided. I think it’s the same in structuring a case for an appeal.

Judge Terence T. Evans: I agree with what Tom and Justice Sykes just said. Here’s a question to be ready for at oral argument if you have raised 10 or 12 issues. Very early in your argument a judge will say, "Now, counsel, you have 12 issues here, what are the two best ones?"

You better be ready — you better know what the two best ones are because that’s all you’re going to have a chance to talk about. And you’re going to get that kind of a question.

I think it’s very important in your brief writing and later in your oral argument to continue to focus the case. Sometimes you have to give up the little things. I know it’s hard. It’s difficult for lawyers because sometimes they say, "I got a lot of crap to throw on the wall, and I don’t know which is going to stick. So I want to be able to argue about everything."

You just have to make choices. … In our court in a typical six-case day, we’ll have three of the cases 10 minutes on each side, and we’ll have a 15 and a 20 and maybe a 25 or something like that. If you have a 10-minute case, there’s no way you can talk about 10 or 12 different horrendous errors that were committed by the trial judge in the case.

Marla J. Stephens: I think that making strategic decisions to pursue the arguments that have the best chance of winning is the good general rule. … There are times where, in order to preserve an issue for review by a higher court, you have to at least have it there. We’ve developed a way to deal with that by just saying, "This is here because it needs to be here in order to preserve it for another day." And that’s pretty much what we do with it. Because the court of appeals cannot reach certain issues that the Supreme Court can.

Shriner: You wouldn’t waste time in oral argument on that either in the court of appeals.

Stephens: Right. You just want to preserve the issue because that’s the duty you owe your client, and you move on.

WLJ: When coming into oral arguments, obviously lawyers don’t want
to simply restate what’s in the brief. How do you balance between making sure you present the important points that you want to make without repeating everything that you’ve had in your brief, which the judges have already read?

Marguerite M. Moeller: I think in my case we’re always … almost always the respondent. As the respondent, if you pay close attention to the questions that were asked when the petitioner or appellant was speaking; your argument should pick up on the threads that were being discussed. You can actually allude to questions that were asked of your opponent. I think that way you’re not just regurgitating what’s in your brief because they may have gone a little bit further afield than what you’ve specifically stated.

Also, because the other side had the opportunity to file a reply brief that you didn’t get a chance to address in writing, sometimes you might want to pick up some statements that were made in that reply brief. Things that you haven’t specifically addressed that you might disagree with or might want to modify.

You can’t pretend like you didn’t sit there and listen to what went on and what the justices were really interested in, because their interests might be totally different than what you were planning to talk about first. You have to be flexible. I know it’s really hard when you’re an inexperienced attorney to do that. After you’ve been through 40 or 50 arguments, you start getting the knack of being able to do that and not sticking to a script.

Evans: I don’t think there’s any way you can plan for that. You have certain points you want to make. Whether you’re going to be able to make them or not is pretty much out of your control. If you’re asked questions as soon as you get up there and the questions are taking you different places, you just are stuck with it. If you have a ticket on the bus, but you’re not driving it, you just have to do the best you can.

I think you would try to tie your answers into the main points that you’re trying to make with your brief. The important point though about being the respondent or the appellee is … to get up and immediately comment on an answer that was given to a question previously asked of your opponent. That’s also a good way to get off the script and start getting into a dialogue with the case.

It might give you a great opportunity if an answer that was given is either not supported by the record, or if it’s a question regarding the law that is not an accurate statement. If you can come up and start your argument by saying, "You asked counsel about this and counsel said… I don’t think that’s accurate. This is what I think…" That’s very effective.

WLJ: Judge Evans, you had talked about varying lengths for discussion during oral arguments, and I know that at the state Supreme Court it’s always scheduled for 30 minutes per side —unless the justices take the discussion beyond that limit. What are some of the other key differences between oral arguments in federal and state courts?

Evans: I’ll give you a brief synopsis of how our cases are set for oral argument. When briefing is completed in the case, our circuit executive looks at the briefs. He doesn’t spend a lot of time, but he just kind of sees what the issues are and then assigns a time for oral argument to that case, and it could be, 10, 15, 20, 25 or 30 minutes.

Once there are some 60 cases that he has done that with, he will package six cases for oral argument on a particular day before a panel. And he will try to mix them up and have a 30-minute case, three 10’s, so you have a "rare," a "medium-rare" and a "well-done" case all set for argument on the same day.

The judges, when the calendar comes out and in looking at the cases, can make adjustments and often do because we recognize that our circuit executive hasn’t had a great deal of time to make this initial determination. So we adjust the time up or down. More likely down.

In that regard, I will tell you one of the best things to say at oral argument, especially on rebuttal sometimes, is "I yield back the balance of my time." If you have said what you want to say and the court doesn’t appear to have any more questions, that’s a good thing to say. The judges will appreciate that.

Shriner: That’s an excellent point and obviously more often likely to occur in the state court where there are longer time periods. But I do think it can be very effective and display a great deal of confidence in your case, if you’re the respondent or the appellee, to say … "I don’t have anything else to add."

The one thing I’ve noticed in the last few years, I think a real difference that has an effect on oral argument in the state and federal systems is the willingness of the Wisconsin Supreme Court to take amicus briefs almost up to the day before oral argument. The Seventh Circuit doesn’t do that. The Seventh Circuit almost doesn’t take amicus briefs anymore. Maybe they’ve gone too far the other way.

The Supreme Court of Wisconsin will allow, particularly trade groups and others, who really are in there lobbying for a legislative result — that’s my bias — to file an am
icus brief even after the parties’ briefs are all in. So you find yourselves sometimes — let’s say you’re the appellant and you’ve had your opening brief, your opponent has responded to it, and you’ve replied, and you think the issues are done. You find yourself realizing that the last thing the justices have seen is something that you’ve had no chance to respond to, and you have to think about what you are going to do. I think you’ve got to think about how you would address it, an argument that’s never been responded to in writing before.

Sykes: I think that can be a problem particularly if the amicus brief is better than your opponent’s or does raise issues that your opponent has not. Then your opponent leads with those arguments even though he or she did not make them, which happens. I won’t say that happens with regularity, but it does happen, so that can be a problem.

It’s a problem with the court too in terms of keeping some control of where the argument is going and where the case is going. When the stakes are as high as they are in a court of last resort, it does become a problem.

In terms of the differences between state arguments and federal court arguments, our arguments, as you noted, are an hour long. Each side gets 30 minutes. Parties who are aligned in interest have to divide up their 30-minute time block among themselves.

As a practical matter, the argument is not done until the chief says so. And she will not say so until all the justices are done with their questions.

Colleen D. Ball: One follow-up thing regarding the differences of the two courts is when you’re in the Supreme Court you know who your panel is, and when you’re in the Seventh Circuit, you don’t. So one thing you can do to prepare your brief and oral argument [at the Supreme Court] is to pitch to the justices that you think you need to win.

Evans: Could I comment on a couple of things that came up that we haven’t had a chance to talk about? This is in the area of tips for oral argument. One is that after your argument you occasionally will realize that you made some statement that is inaccurate or something to that nature. If on reflection that has happened, it’s a very good idea to send a letter to the court correcting a comment or assertion of fact that you made during your oral argument. You should definitely do that.

The other thing, because our court is in Chicago, we are amenable quite often to hearing oral arguments through a speakerphone. For example, if you’re a lawyer up in Green Bay … and you have a case that’s going to be argued for 10 minutes in Chicago, if you’d prefer to do your argument by speakerphone, you can ask and often or most of the time that will be granted. We are working presently on a system of video conferencing for oral arguments. That’s sort of in the future, but it may happen.

WLJ: I’d like to wrap up by quickly going around the table and putting together a quick list of do’s and don’ts for oral arguments. Some key things that attorneys can just jot down.

(L-R back) Hon. Terence T. Evans, Marla J. Stephens, Marguerite M. Moeller, (L-R front) Colleen D. Ball, Thomas L. Shriner Jr., Hon. Diane S. Sykes

Moeller: Make sure you know your record cold so that if you get any factually-based questions, you can answer them without appearing to be befuddled. Know the key cases that you and your opponent are relying on, so that if your justices or judges want to get into a discussion of those cases, you’re able to either align your case with them or distinguish them.

Also what we talked about in terms of demeanor. You have to be respectful, but yet, somewhat conversational to get into a real dialogue and listen. It’s really important to listen to what your opponent is saying. When they’re up there talking, you should take notes if there’s something that you disagree with or that doesn’t sound quite right to you. Otherwise, it appears that all you’re doing is concentrating on what you say, and you’ve totally disregarded the questioning that’s gone on before you got up there.

Ball: I think it’s really important, as we’ve already talked about, to know the weaknesses in your case. One way to do that is to prepare your list of the top 10 questions you’re afraid to get asked, so that you’re not fearful when you’re asked them. I think it’s important to give direct answers, particularly the shorter the argument you have — especially in the Seventh Circuit.

If it is a question designed to make you give a concession, you can sound much like a politician that you’re dodging or trying not to give the answer. I think it’s important to give very direct answers and then move on from there.

Stephens: I have a laundry list of things that you need to do to prepare for argument, either on your
own or in an oral argument panel. The questions you need to be able to answer are:

• Why do you think the court took this case? (Especially if we’re talking about a law development court like the Supreme Court.)

• What do you want us to do in this case, counsel?

• How would you write this opinion, Counsel?

Ask yourself, what kind of case is this now, after briefing, after you’ve seen everything that’s out there. Is this a standard of review right? Is this up here because there’s a split in lower court decisions? Then you follow one strategy.

Is it up here because it’s a case of first impression? Is it up here because it’s a public policy question? Is it just a clean old statutory interpretation case? Figure out what kind of argument you have, and tailor your approach.

Two final things, organize your materials. It’s very helpful and I think it helps the court realize that they can rely on what you’re saying if they ask you a question about a case and you have your materials organized. I do it in a binder so I can say, "Yes, this is case so and so, and here’s the case." You can walk over, hand it to the bailiff, and it’s opened to the page that they want to see or the same with anything in the record that you know is the subject of the appeal. Get yourself organized. Look like you’re in command of the facts and the law. Finally, look like you care. Sound like you care.

Shriner: There was a comment made earlier about people making a jury argument to an appellate bench… I think the key to that is you have to have some passion for your case. It is wrong to make what is overtly a jury argument because the judges will roll their eyes at you. They should. That isn’t what they are. But you shouldn’t give up the idea of persuading them that you’re right, that your client is right, that justice or good or right, or whatever is on your side.

A couple of things just in terms of technique. Depending on the court again, but particularly in a court like the Seventh Circuit where you may only have 10 or 15 minutes, it seems to me if you’ve got three arguments in your brief, you’re not going to make all of them. You’ve made your points in your brief, and they will have read it. You’re probably going to pick an issue or two at most to spend time in oral argument on.

You ought to explain what you’re going to argue and what you’re not going to argue beforehand. So if there’s a judge sitting on the panel or on the Supreme Court who really is interested in something you’re not going to talk about, get it out there up front. Let the judge say, "I want to ask you about this."

Finally, I would come back to this question about dialogue. I mentioned earlier the example of the former Supreme Court justice who had a wrong attitude toward the court. The other extreme is one of fear. … If you don’t have jitters going into an appellate argument, I don’t care how long you’ve done it; you’re not doing it correctly. You ought to be nervous, but you can’t be afraid.

That’s why the notion of dialogue is the right way of putting it. However new you are at it, you’re legitimately there. You have a function in this case, and it’s just as important and just as legitimate as the judges sitting up on the bench.

I think that getting to the point where you can overcome the natural fear and stress of being in that setting is just as important in an appellate court as it is in front of a jury or any other kind of setting appearing before a judge.

Sykes: I agree with all of that. In addition, keep it as extemporaneous and conversational as possible. Do that big-picture thinking that Marla was talking about. Where does your case fit in the greater scheme of things as far as the court is concerned? … You’ve got to spend some time doing that big-picture thinking and focus your argument on that while meeting the objectives of the client, as well as winning the case.

Also in our court, speak up. It’s a very practical suggestion, but our sound system is very fussy. So make sure that you speak up so that you can be heard.

Shriner: The acoustics of that room are bad, despite all the effort that’s been made in redoing it. It’s a big marble closet, and your voice bounces off the wall. You’ve got to know this.

	Related Article Roundtable Discussion (April 30, 2003)

One other point, I’ve done this for years and I know lots of lawyers do — if you’re not the first argument in the morning, go listen to the ones ahead of you. See what the bench is like that day. Get a sense of how the judges are interacting with each other. I think it’s very helpful. I’m surprised at the people who are off reviewing that argument that you’ve already reviewed 40 times instead of sitting in the courtroom and listening and watching. I think that’s really a good thing to do.

Ball: I think that’s good to do too, if you haven’t ever appeared in a particular court like the Seventh Circuit. Go and see how they do theirs.

Stephens: The other thing that’s a great preparation for oral argument or a learning tool is watching other people argue. The other thing you can do is volunteer when the law schools ask for moot court judges. When you’re sitting up there watching other people argue, you learn so many things about what’s effective and what isn’t that would not dawn on you otherwise.

Shriner: Another place to volunteer is the Seventh Circuit. It is always looking for people to volunteer to handle primarily criminal appeals. Our firm, and I know other firms as well, have taken those appeals when the court asked them to do it.

I would be uncomfortable handling a criminal trial because I don’t have a sense of how the game is played, but a criminal appeal is like any other appeal. It’s based on the record. If the issue hasn’t been preserved, you can’t raise it. So I think those are great opportunities for someone who wants an opportunity to take a record, work up a brief with only an issue or two in it and go argue in the Seventh Circuit… I think more lawyers ought to do that.

Tony Anderson can be reached by email.