The word on oral arguments

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"Judges are your friends."

So said former Supreme Court Justice William A. Bablitch at a "Reality CLE" program at the Milwaukee Bar Center on May 16, entitled, "Deconstructing the Oral Argument."

Also on the panel was another former justice, Janine P. Geske, and former Milwaukee County Circuit Court Judge Lee Wells.

During the program, the three watched videotapes of two recent oral arguments that took place before District I of the Wisconsin Court of Appeals, and offered commentary on the attorneys’ presentations.

The most important thing, Bablitch advised, was to have a road map and present it to the court right away, so the court knows where you are headed with your argument. The road map should contain both a summary of the issues, and a summary of the argument.

In the Supreme Court, Bablitch advised, there is an unwritten "5 minute rule" — that the justices won’t interrupt with questioning in the first 5 minutes. But Geske warned that the rule is not only unwritten, but unenforced.

Nevertheless, if you’ve told the court from the beginning that you intend to address an issue, you are less likely to be interrupted by a question about that issue, while you are discussing something else.

Also important, Bablitch said, is to have one short sentence to focus the court on what the case is about, such as, "this is a case about 10,000 chickens that died because of faulty wiring," an apparent reference to Insurance Co. of North America v. Cease Electric, Inc., 2004 WI 139, 276 Wis.2d 361, 688 N.W.2d 462. While judges don’t remember cases by citations or even name, they do remember what cases are about, Bablitch declared.

Another good rule to remember, Geske added, was to avoid presenting a new idea that just came to you the night before. "There’s usually a good reason you did not think of it before that," Geske warned, "and it is that it is not that good of an argument."

Wells also noted that raising a new issue can result in the argument getting unduly bogged down on that issue, because it hasn’t been fully briefed.

On how to handle questions that appear to come out of left field, all three judges had advice. "Answer promptly, even if you don’t think it worthwhile," Wells advised.

Geske stated that such questions can be a good thing, suggesting the judge has read the briefs thoroughly and is giving thought to the policy ramifications.

But don’t ever say, "that’s not this case," Bablitch advised. "That always goaded at me. The justices know that, but they also know they paint on a broad palate, and must think how a decision will affect other cases. Never say, ‘that’s not this case,’ Bablitch warned.

Questions by judges in the videos regarding the possible existence of a material fact generated discussion also. Wells advised that you ask yourself whether going back to the trial court is really what you desire. Geske added that judges may jump on a factual issue as a way out of deciding a legal one.

Limiting the number of issues you are going to address is also important. Time goes fast during oral argument, Bablitch advised, and you should pick two or three arguments, and stand on your brief on the rest. If the justices want to go into something else, they will ask about it.

And don’t assume what the judges are thinking, especially when Chief Justice Abrahamson is the one asking a question. Bablitch warned: "You will have no idea where she is coming from, from her questions. She will play ‘hide the ball.’"

Only when Justice N. Patrick Crooks asks a question does that not apply, Bablitch said: "Listen carefully, and answer carefully; that is your opportunity [to get his vote]."

The judges also recommended the following:

• Videotape mock arguments twice;

• Present highlighted copies of the statutes at issue to the court;

• Use demonstrative evidence (with advance approval);

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  Don’t flood the court with detail before providing the overall context;

• Write out both the opening, and the last sentence;

• Know the remedy you are asking for;

• Know the record; and

• Be prepared to answer the question, "If you were writing the decision in this case, how would you write it?"

And remember, "Judges are your friends, not your adversaries. They don’t want attorneys to fail; they took the case for a reason, and want the attorneys to succeed."

Just hope a justice doesn’t get too friendly and tell you, "that was a great argument." According to Geske, it is the Kiss of Death.

David Ziemer can be reached by email.