Roundtable Discussion

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Wisconsin Law Journal: I’d like to start out by asking each of you to name one or two elements of things that you’ve seen in the best oral arguments that you’ve either witnessed or that you’ve presented.

Marguerite M. Moeller: I think one of the things that I most admire and think makes for a good oral argument is when there’s a dialogue be-tween the attorney doing the presentation and the court. It’s not just somebody getting up there and kind of talking or giving something memorized. It’s more of a give and take, and the person really answers the questions that the justices pose directly.

Judge Terence T. Evans: I certainly agree with that. We would call that a hot bench when the judges are very active in asking questions and the lawyers can get off a script and respond precisely to questions that are asked. Those are the ones that seem to me to be the most impressive.

If you come in with an oral argument that you’ve rehearsed in front of a mirror or in front of colleagues and that’s the way you’re approaching oral argument, you may run into a hot bench where there are a lot of questions. Some cases just don’t lend themselves to a lot of questions. But if you have that sort of situation and you’re able to take your prepared oral argument and, in effect, set it aside and then get into answering questions and directly confronting the logic of the question that’s asked by a judge, I think that’s the most effective part of the oral argument.

Colleen D. Ball: Nevertheless, I think it’s also important to have affirmative points in mind that you hope to make when you’re at the argument. Sometimes when you watch them, you’ll see people go up with a legal pad with scrawling all over it and the thoughts come out rambling too, as though they’re just trying to fill the time. Or at the end eventually you wonder what was the point of this argument? Were they just there to answer the questions, which is of course a very important reason to be there and you must do it well.

Hopefully, you have a couple of points that you feel you need to win in order to win the appeal or points where you want to address a weakness in your case that you want to assure the court about, and those are prepared. The most impressive advocates to me are the ones who can go in with those few points in mind and answer relentless questioning and never lose the thread of their argument in the process.

(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

Marla J. Stephens: I’d like to elaborate on what Colleen and Margie said because I would characterize it as an advocate’s comfort level. Being able to project a sense that "I welcome the court’s questions. I’m here to have this discussion." Not presenting as "You’re interrupting my presentation." You have to convey that "I’m here to talk about the case."

The confidence that’s needed to do that, you get that from knowing the record cold, you get that from knowing the law cold. If you’re prepared and you walk in with a one-pager like Colleen is, I think, suggesting — points I absolutely have to make no matter where the questioning goes -— and you have a set opening statement and a set closer, you’re fine.

Thomas L. Shriner Jr.: Everything I’ve heard, I agree with. I could put it negatively in the sense that some of the worst arguments I’ve ever seen are lawyers who refuse to get off the speech or, even worse, refuse to answer a question.

I think it has to do ultimately with a conception of what oral argument is. I think if you haven’t had good appellate briefs, you’re probably not going to be able to salvage an oral argument. I can’t think of a case where I’ve ever seen somebody save a case from a really bad brief.

So what you’re going in to do — hoping that the judges have read the briefs and thought about them a little bit — is
to make a couple of points. If you have the idea that, "I wrote my brief a couple of months ago, I’m now here to give my speech and please don’t interrupt me," you’re mistaken.

We see people bristling sometimes when judges ask them questions when in fact they ought to be welcoming it. If the judges have read the briefs and thought about it at all when they’re asking you the question, they’re really asking you to help them decide it your way. They’re giving you the opportunity to get in on the decision-making that’s going on in their own mind. If they’re good judges, they’ve suspended whatever their preliminary impressions are from the briefs until they give you an opportunity to argue it and give you an opportunity to persuade them. Good advocates take those opportunities and don’t resent them.

Justice Diane S. Sykes: I agree with everything that’s been said. I think another way of articulating that is that the best oral arguments are those which reflect that the advocate has a firm grasp of what is important to the court about this case from a law-development standpoint. They also reflect a very well thought out plan for merging that with the objectives of the client. From the standpoint of my court, when we accept a case on a petition for review or certification, there are reasons for that from a law development standpoint, and that has to be thought through by the advocate and worked into the client’s objectives, and the best oral arguments are those who do that.

WLJ: Tom, you had touched on some elements of the worst oral arguments. I’d like to build on that a little bit. Think back to some of the worst arguments you’ve seen and talk about some of the elements of those. What really soured those arguments?

Shriner: The worst argument I ever saw and I remember well, and I won’t mention the name of the lawyer who did it, he’s long dead.

Evans: Then you can mention him.

Shriner: Actually I will — Former Justice [Abe] Fortas who then resigned from the U.S. Supreme Court and made an argument in the Seventh Circuit.

He had been an expert for years in Federal Trade Commission matters and went back into practice after he left the Supreme Court bench.

He made an argument in the Seventh Circuit, and he was terrible. I think the reason was unique to him in his situation. He couldn’t bring himself away from having been a judge, and he talked down to the court. He talked on long after his time was up, and of course, he was deferred to talk as long as he wanted, and he was making absolutely no progress. He wasn’t persuading anybody.

The point of that is that you have to remember what you’re there for and who you are even if you haven’t been on the Supreme Court before. You’re given an opportunity to persuade, and you’re not a beggar. You’re not somebody there who’s begging for a result. You’re also not in a position to talk down to the bench. You’re given an opportunity to get into the decision-making process.

I heard Judge [Frank] Easterbrook one time in a panel like this … [say] that the best oral argument is really like — and this may sound funny coming from Judge Easterbrook, but it’s true — it’s like a conversation around a coffee table among friends about something interesting. I’ve seen arguments like that. Those are good arguments, and I think you can do your job well if you can get into that category or mood.

Evans: I’ve been to a lot of arguments with Judge Easterbrook, and I would not describe them as sitting around with a bunch of friends.

WLJ: Any other recollections of elements of worst case?

Ball: Two came to my mind. One of them was in the Wisconsin Court of Appeals where a lawyer gave essentially a jury argument to the Court of Appeals, and it was very impassioned. It was explaining why all of this evidence required the court to rule in his favor. And it was designed to tug at the judges’ hearts. I sat there feeling very embarrassed as I heard it, and the judges were rolling their eyes.

It just made me think about oral argument as much like a master’s thesis defense. You’ve done your position paper, and you’re going in to talk with three professors, so to speak, and defending your position. They are people who know the subject matter perhaps broadly better than you do, but maybe not the precise issue or the precise record as thoroughly as you do, depending on how much time you put into it. It’s an academic discussion, an academic exercise as opposed to a jury pitch.

The other one I remember as being particularly bad was a case in the Seventh Circuit where an assistant attorney general from another state had made an argument where she just didn’t appreciate the weaknesses of her case when she went in. I think she thought the court would be very sympathetic with her position; and when they weren’t, it caught her off guard. She couldn’t answer questions that were designed to undermine her position. At one point one of the judges threw their pen down and said, "Come on, I can’t believe that sort of thing."

I knew coming out of that argument who had won. I think that’s the only time I would have ever made that prediction, quite frankly.

Evans: To make a good oral argument, you have to really know your case. If you really know your case, you have to know where the soft spots are in that case, and there invariably are soft spots in every case. It may be a soft spot in logic or common sense to your position or some adverse authority to your position. That’s where you have to be ready to respond to a question.

If you are arguing in front of one of these hot benches, invariably the judge or justice will pick out that soft spot and ask you about it. It’s very depressing to your advocacy if you don’t have an answer ready for that.

Sometimes there’s a tendency, if you have a weak spot, to sort of forget it’s there or wish it would go away, but it won’t. You have to be prepared to answer questions about that. Especially when it’s a question of logic. If you can’t, that’s a bad oral argument.

Moeller: I think I’ve seen more than my share of bad arguments but two stand out. One involved a woman who was speaking just so rapidly and in kind of a staccato fashion. It was very difficult to even listen to her. And then when the justices would ask her questions — this was in the Wisconsin Supreme Court — she would interrupt them. Before they would even have the entire question out, she’d start answering it.

At one point, one of the justices began to ask a question, and she said, "I know what you’re going to ask me." Then she proceeded to give this lengthy answer. Then the asking justice said, "Well, that isn’t exactly what I was going to say," and kind of corrected her.

I think it was purely nervousness on her part because I know this attorney, and she’s not normally rude. But it just came across as being … pretty rude to the court. She was simply nervous, and it just made for a very poor oral argument.

The other one I saw involved an attorney who I don’t think had any concept of law development. He had been appointed by the court pro bono to represent a person, whom he had not represented in the court of appeals or in the trial court. So he had a very narrow take on the case. It also didn’t help that he was from Minnesota, so he didn’t really know Wisconsin law very well.

At one point, he was getting off his brief. He made the comment that the defendant’s constitutional rights were being violated by being questioned by a non-lawyer. Justice Sykes said, "Well, could you tell me what constitutional provision you are referring to?" And he kind of looked around and said, "The Fourth Amendment." And Justice Sykes said, "Could you point out the specific language in the Fourth Amendment that you’re relying on?" He said, "Your Honor, I really haven’t read the Fourth Amendment since I was in law school." I thought, "Okay, I think I won that one."

Shriner: Judge Evans’ point really raises something… Say you’re in trial in front of a jury. You’ve got something that you know your witness is going to get hammered on in cross, of course; the traditional wisdom, and it is wisdom, is bring it out on direct and deal with it.

The kind of question that Judge Evans was talking about may be the logical hole in your argument. If your opponent has found it and pointed it out in the brief, I think it’s essential that you address that without being asked, not only not try to hide it, but put the best spin on it that you can.

Obviously, if your opponent hasn’t found it, you can hope the court won’t find it either. Sometimes it doesn’t, but be prepared for a question. Drawing out the fangs of the tough issue, it seems to me, is always better than waiting to get asked about it.

Stephens: I would like to talk about what characterized the worst argument I’ve ever seen because I’m not sure it’s been touched on yet. This was an attorney, who was appointed in a public defender case.

It was painfully clear that this may have been a very good trial attorney. But the attorney approached oral argument the way that I think the attorney may have approached routine court appearances in circuit court. It was very clear that she was not listening to the questions that the court was asking because she wasn’t answering the questions. She wasn’t responsive to the questions.

There were a couple of reasons why she wasn’t responsive in addition to the fact that I don’t think she was listening. She simply didn’t know the record. Her response to questions about factual matters was to say, "I wasn’t the trial attorney in this case, I don’t know."

Her responses to questions about the applicability of certain rules was really painful to watch. It was clear that she hadn’t even read all the cases cited in her briefs. So it’s a lack of preparation, a lack of caring that I think characterizes a lot of bad argument.

Sykes: The only thing I would add that hasn’t been mentioned yet — and I agree with ever
ything that’s been said — is that problem arguments are typically characterized also by a sort of overreaching where the attorney really is asking for too much. That’s when the advocate will tend to get into trouble. So in addition to the failure to answer questions, the failure to acknowledge weakness, the failure to be prepared and know the record in your case. If you overstate your case or overreach in what you’re asking from the court in terms of a legal rule, then you’re going to get into trouble.

WLJ: We’ve talked a lot about preparing for the tough questions that are going to come that may undercut the position that you’re taking. When doing some of that preparation, do you advocate the use of mock panels?

Stephens: I do very strongly. It’s something that I know that the Department of Justice does. It’s something that the Public Defender’s Appellate Division does.

When you’re briefing, usually the dynamic in briefing is that you start writing the brief and you say, "Why did I appeal this case?" By the time you’re finished with the brief, you are absolutely convinced you have won the case. It’s a wonderful transformation as you’re writing it.

When it comes time for oral argument, usually a couple months have gone by. It’s no longer fresh in your mind. Having a mock panel helps expose the weak points in your case, the kind of questions that you are likely to be asked during oral argument, and then it gives you an opportunity to focus on how you are going to address this, what points you need to make.

Your colleagues will also have suggestions for ways to say things that have not occurred to you because you may be too close to the case emotionally. As we deal with different levels of experience -— with attorneys who are less experienced attorneys, we tend to want them to go through their entire prepared material. With more experienced attorneys we say, "We’ll put a panel together for you, tell us what you need help with."

It’s something that I wish more of the attorneys who we appoint from the private bar would avail themselves of. We will put together a panel of staff attorneys to do a mock argument for them.

Ball: I always do a mock argument and sometimes two. I think it’s really important to try and have a diverse panel when you’re doing it and somebody who knows the area of law better than you do.

If you’re really lucky, you can get a former judge on that panel because they will look at it in a different way. They’ll look from the angle of "How would I end up writing the opinion on this case? What are the implications for remand, or law development or whatever?" Those are things that a lawyer may not be looking at.

One of the things I like about it, like Marla said, it forces you to look at your case in a different way. It gets you in the give and take that Margie was talking about. Also, when you’re forced to explain an answer to a hostile question, orally it forces you to fine-tune your answer. By the time you get to the actual argument, your answers are quite precise, either when they’re probing the weak point in your case or otherwise. Especially if you’re in the Seventh Circuit where your argument might only be 10 minutes long, your answer had better be very precise.

Shriner: I have to confess I’ve never done one myself. That’s not the way I prepare. But we use them [at Foley & Lardner], and I think they’re very helpful. I have participated in a lot of them as a panel member. It is almost invariably the case that after you’ve been through one of those [mock panels], the actual argument is nowhere near as exciting, interesting or tough.

The only thing I would add is that if you can, you should videotape it. There is nothing like seeing yourself. Everybody’s got a video camera. It doesn’t have to be professional at all. The same is true for a jury argument. You see yourself, you find out that you have verbal ticks that are annoying or that you do something with your hand. I think it is a great element to videotape one of those and look at it afterwards.

Sykes: As painful as that might be.

Shriner: As painful as that might be. You tend not to repeat what you’re embarrassed by seeing yourself do.

Sykes: It was a shocking experience for me to go on our Web site and listen to our arguments on line when we went up on our Web site with streaming audio. Be-cause of course, you think you sound very articulate and that your sentences are appropriately punctuated. Not true. It’s very humbling.

Moeller: At the risk of insulting the jurists among us, I agree with Tom that after you’ve gone through a moot court with your colleagues, the actual argument is almost invariably easier. Once in a great while the judges or justices will come up with something that your colleagues have not thought about, but that’s rare.

Shriner: That’s usually because it’s completely off.

Moeller: I’m glad you said that. Which is another reason why I think Colleen’s suggestion about having a diverse panel is very good. We don’t really have that luxury because when we do it in criminal appeals, everybody on your panel is somebody who is a criminal appellate specialist.

Every so often, you get a judge or justice who asks a question that’s totally out of left field. And if you get somebody on your panel who doesn’t know anything about criminal law, that would replicate the situation a little bit more accurately.

Another thing I think that’s important is it can often make you totally reassess the approach you were going to take. Like I’ll go into a moot court thinking that my strongest argument is "A," and people on the panel will be like, "Now, you don’t want to lead with that because then they’ll ask you such and such, and you’re going to get down this path. You should really start with argument ‘B.’" So I have totally reformulated how I want to present my case.

Evans: I’m not a very good person to ask about these mock panels because just listening to these comments I was thinking it’s been 29 years since I’ve made an argument to a Court.

One thing, Justice Sykes … mentioned or characterized a case as a law development case kind of going hand in hand with what I said about really knowing your case. I think you should know how to more or less categorize your case.

In many appeals that we hear, because in effect we’re the intermediate … in the federal system, we hear a lot of error-correction kind of fact-intensive cases. I just don’t know how giving an argument or mock argument to a couple of your colleagues could help you get ready for an oral argument in a case like that. In a law development case, I think that could turn out to be very helpful.

One other comment on something … somebody walked out of court and you knew right away you had lost the case. Well, I don’t think that’s necessarily true all the time. I’ve seen many cases where the lawyer who was worked over the most and probably walked out of there thinking, "I have a loser," 60 days from now gets an opinion that goes their way. So I don’t think you can necessarily tell what the outcome of the case is going to be by the type of questions you’re asked.

Shriner: I agree with that. I think the worst thing is — I’ve been guilty of it sometimes in the past. I don’t do it anymore. I’ll be coming out of the argument thinking how well I did and telling everybody I won and finding out that I didn’t.

You touched on a point that I wanted to talk about that Justice Sykes actually raised earlier about law development function, which of course does come up in the Seventh Circuit all the time, because it’s the last court most of us are ever going to get to in the federal system. I think in an intermediate appellate court, judges are worried about where the case is going to push the law, what the limits are and so on.

The problem with that is, and this may not be true for Margie and the Attorney General’s office or Marla and the Public Defender, but I don’t care about where the law is going. I just want to win my case. You do have to deal with the fact that the judges do care, particularly the Supreme Court, but in any appellate court and even in the trial court. They care about where the law is going.

So you … want to think about it as a technique. You’ve got to be prepared to address that, even though you really don’t care. That’s often the challenge. I don’t care if you get it wrong. I don’t care if you take the law off the cliff. If I win, it’s okay. That’s what I’m paid for. You certainly can’t convey that if you have any hope of winning.

Stephens: It’s interesting you would say that because that’s a dynamic that the Public Defender’s office does have to deal with fairly regularly. We have a duty to our client to obtain relief for our client. Maybe the best example of that tension is where you want to raise this issue. You’ve been waiting to raise that issue, and you realize that this is not the best case to do it in. But you have a duty to your client to raise it. It’s there.

Shriner: It’s the only case he’s going to get.

	Related Article Roundtable Discussion (Jan. 8, 2003)

Stephens: Exactly. So it manifests itself in one agency, the State Public
Defender, perhaps taking inconsistent positions on a particular issue over time. One client wants this and one client wants that. The issue is there. The department has, I think, some constraints in that respect.

Moeller: I agree. We make a concerted effort not to take inconsistent positions. I know sometimes something will slip by us where several years ago an attorney took a position in a particular case, and we’ve kind of forgotten about it, and accidentally somebody will have a more vigorous take on something.

We have one person who pretty much reviews all of the briefs that go out of our unit, which is an incredibly time-consuming task. One of the reasons they do it is to make sure those situations don’t crop up. We feel that we have that ethical constraint.

The Public Defender’s office can — you know, play fast and lose. One case they’re saying this, and one they’re saying that. It’s just a different type of representation involved. We represent the state as a whole, and I think we’re better suited in that sense to be able to carry the mantel of whatever law development because we don’t have separate clients in our cases.

Shriner: You’re supposed to want justice regardless of the outcome.

Moeller: That’s correct.

Tony Anderson can be reached by email.