Stand and be heard

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When it comes to oral argument, no man is an island.

You cannot prepare alone, emphasize a number of seasoned appellate practitioners.

“For some reason, talking out loud about the crux of your case helps a great deal in being able to convey it clearly and coherently,” explains Barbara J. Janaszek, chairperson the Appellate Practice Section of the State Bar of Wisconsin.

“You can’t just prepare for it in your head, and you can’t do it alone. You need to learn to deal with whatever will be tossed your way. And, you’ll find that undoubtedly, some of the questions you’ve anticipated will be asked. When you can answer them, it goes a long way toward building your confidence when you’re in the hot seat.”

Make Time for Moot Court

Janaszek, of Whyte Hirschboeck Dudek S.C. in Milwaukee, says that your audience can be other lawyers within your firm or outside it, and if the client will go along with it, possibly a consultant/retired appellate judge. Of your moot court, it’s helpful to have persons who know the case and the substantive law, and some who don’t, because you want the arguments to make sense to both groups.

Steven J. Berryman says that when he’s getting started preparing for oral arguments, he drafts an outline that tells the court everything he’d like to tell them, if he had all day.

Then he cuts that down to one page.

“You shouldn’t have more than three points that you want to make in your argument, or the court will get lost,” says Berryman, of Quarles & Brady LLP in Milwaukee. “You should plan on making an argument that’s half as long as the time you’ve been allotted. So, if the Seventh Circuit [Court of Appeals] gives you 10 minutes, you should prepare an argument for five minutes.”

There will be two parts of your presentation: the argument, followed by the questions. And there will be questions, Janaszek says. In the Wisconsin Supreme Court, you can expect “What is the legal principle you are asking this court to adopt?” from Chief Justice Shirley S. Abrahamson. Another favorite is, “What are the policy implications of what you want this court to do?” And, especially in the Seventh Circuit Court of Appeals, a question about jurisdiction is likely.

Don’t Fudge Answers

Answer a question directly — don’t fudge it if you don’t know the answer. Also, speaking of Justice Abrahamson, she says that her court “doesn’t like to wait” for an answer.

There’s nothing wrong with asking for clarification, reminds Susan M. Tyndall, of the CMT Legal Group Ltd. in Waukesha.

Or, if the answer needs to be, “I don’t know,” that’s OK, says Anne Berleman Kearney, of the Appellate Consulting Group in Milwaukee. Just ask to supplement the record with a letter brief on it, post-argument. Kearney had to go that route in an afternoon argument, when the court asked about precedent that had been handed down that morning.

Abrahamson adds, “Our court gives a five-minute ‘free time,’ so that no one is supposed to ask questions for the first five minutes. You can get out, essentially free of interruption, your key points. Remember that and use that time wisely. Come prepared to make those three points before the questioning, and get them out, because you might not have time if you don’t.”

And, if you’ve never been to the appellate court, if your case is on the docket, now would be a wise time to make the trip.

Donald J. Wall, the past-chair of the Appellate Practice Section, and a staff attorney with the federal appellate court in Chicago, advises, “Become familiar with the surroundings, where you will sit and where you will stand. Sit in on a session of the court; listen to the lawyers argue their cases and watch how the judges interact with the lawyers. You’ll be less anxious when it’s your turn.”

Know Your Case

It might be wise to have two arguments ready to use: one for a panel that has few questions, and another for a panel that has a barrage of questions, he continues.

And, maybe this is a no-brainer, but Wall adds that you should know your case. It is not wise to respond to a question with, “I don’t know. I was not trial counsel.”

Further, don’t “read” your argument. “A memorized argument is seldom effective,” says Wall. “It usually sounds mechanical and may be constantly interrupted with questions.

“Ideally, oral argument is a discussion with the judges on the important points of your case, during which you can learn about any points that may be troubling the judges and respond to them.”

Finally, if you’re done talking, and so are the judges — but the light is still green — ignore that light and sit down, says Tyndall.