Written by Roy Black
Last week was packed full of advocacy. On Wednesday, Howard argued at the Supreme Court while I tried a 3-day civil non-jury case (a declaratory action, so no jury), and Sunday afternoon I was a judge for the semi-final round of the law school’s moot court competition. This was a star-studded event. It was organized by Susan Kornspan (former Florida moot court champion), and I sat on the panel with Phillip Hubbart (former national collegiate debating champion and chief judge of the Third District Court of Appeal) and Jerry Kogan (former National Moot Court Finalist and Chief Justice of the Florida Supreme Court). I am awed just to be part of this exalted group.
After the students’ arguments, we were asked for any criticism or suggestions. Typically Phil gave the best advice. He told the students that when a judge asks you a question, he or she is not looking for you to argue with them. They are looking for your position on the issue. The judge must write an opinion and wants to get it right. Think of this as a conversation between equals, so turn down the heat and talk like a human being.
I recalled an oral argument that worked just like that. The panel came out and the chief judge calmly noted that the court knew the lawyers were anxious to start their arguments but he wanted everyone to relax and just talk to them about the case. They wanted our input to make the right decision and we should relax and speak normally. The ensuing discussion was both illuminating and fun.
While preparing for the moot court event, I thought about who should argue the appeal – the trial lawyer or the appellate specialist. I believe in one lawyer – one advocate; one lawyer who has lived the case and knows everything about it. From the investigation to the bail hearing to trial to arguing the appeals. One lawyer should strive to know every detail, to be the one indispensable lawyer who knows every fact, every motion and every precedent. This is the way to being the consummate advocate. The lawyer for the situation. Any situation.
A case on point, my partner Howard Srebnick and the Kaleys. He advocated for them through hearings at the magistrate and district court level. Then two appeals to the 11th Circuit and finally at the Supreme Court. He had the supreme confidence that comes with being with the case all the way.
After the moot court session, I started jotting down notes about the art of oral argument:
The master advocates can learn any issue, whether fact or law, and present it to a court. They have the ability to clearly articulate the client’s position. And this is what we need to teach our students. I am not interested in teaching legal research, writing briefs or appellate procedure, I only care about the oral advocacy.
Prepare for questions. Slowly read and digest the record, the briefs, and the cited cases. Read significant secondary sources like law review articles, economic or scientific studies and even legal blogs and journals. Then review every argument in your brief from the point of view of a skeptical judge. Comb through your opponent’s brief with an open mind to appreciate the points it makes that are the most trouble for your position. Imagine every difficult question that a judge might ask.
My rule of thumb is that it takes a week to prepare for oral argument. I read every case cited by either side; many lawyers think it is necessary only to read the major cases but I am afraid of getting a question even on an obscure one. But almost always after leaving the courtroom I think I should have spent more time on the facts and the record than the case law. I did my best when I knew the material well and I could relax because I had the confidence I could answer any question.
As Judge Gerald Bard Tjoflat has observed: “Nothing is more frustrating for an appellate judge than being confronted by counsel who do not know the record. Knowing the record is vital; yet, many lawyers are unable to tell us during the course of an argument whether, for example, they objected to the jury instruction they are challenging on appeal.” If Judge Tjoflat senses any hesitation, he doesn’t hide his disdain.
Most judges rarely ask about specific cases unless the appeal rests squarely on a specific precedent. It is usually more effective to leave analysis of cases to the briefs and devote the argument to conveying the logic and common sense of your position. Transform the written arguments into an oral presentation where you simplify them and hone in on the most important points. Also if relevant, know the statutory scheme, the problem it addresses, and the policy behind its passage.
The phrase “oral argument” is a misnomer; it is not an argument, it is a discussion. The tone is closer to a conversation than a question and answer session. When a judge asks a question, immediately stop whatever you were saying and listen carefully. Don’t start answering until the court has finished asking the question, then answer it directly. Be wide open to the question, and show no defensiveness. Once you have answered it, then you can transition back to your argument.
As Judge Frank Easterbrook of the Seventh Circuit puts it, the “brief is counsel’s monologue, argument the dialog.” This is the only time you get to see the judges eye to eye, without any intervening screening by a law clerk. How important is the argument – appellate judges usually leave the bench to go vote on your case with your position fresh in their minds.
The court needs to make a decision, and they want your help. It is your understanding and knowledge of the case that they are after. Think of yourself as an invaluable resource to the judges; you are there to help them. You know the case better than anyone else. You can save them from making a mistake.
Listen to your opponent’s arguments. Don’t allow him or her to get away with misstating or misinterpreting a critical fact or rule of law.
In crafting your argument, you must help the court forecast where the principle you sponsor will go. How it will improve the law or procedure while your opponent’s will disrupt them. This is where the court’s hypothetical questions will kick in. They are designed to test the soundness of your position. You must explain why the hypothetical demonstrates that your position works best. Courts are always worried about “opening the floodgates.”
Find out what troubles the judges and address those problems. Show the judges that your position hangs together and can withstand the hypotheticals they pose. Usually hypotheticals are devised by the court to test your theory. To see if it will cause unacceptable results going forward. You must understand and articulate the essence of your argument and fully grasp the practical and theoretical implications of the legal rule you are espousing.
On Sunday, I sensed the students were unsure of advancing policy theories and when pressed on the legal principles they fell back on merely citing cases. While this is the safe route to take, it will not win the day. This was especially so when the reported cases don’t quite fit the one at hand. This case presented one major issue – the seizure by the government without a warrant of historical cell phone data to track a defendant’s travel. This raised a serious question of privacy, but the students were not able to frame the policy issues well. The judges were struggling how to preserve citizen’s privacy yet still allow legitimate government investigation.
What is a reasonable expectation of privacy today? Do we need new rules and safeguards to curb the government’s massive intrusion into our lives? While the precedents speak to 18th century tort law (US v. Jones) or third party business records (US v. Miller) we are more afraid of the brave new world (How many Americans are aware that someone can know where you are at all times, because you have a mobile device, even if it is turned off?). Technology is advancing so swiftly it threatens to emasculate our right to privacy. Can we use the GPS systems in cell phones to locate people in their bathrooms and bedrooms? How do we define the zone of privacy today? How much should we fear carrying these GPS devices in our pockets?
The students were never able to assuage these fears. While the students didn’t have any answers, neither does the US government. This legal issue doesn’t occur in a vacuum. Right now we find out that the NSA is tapping the personal cell phones of German Chancellor Angela Merkel and other world leaders. And Monday began the British trial of former News of the World editors Rebekah Brooks and Andy Coulson and thirty others on charges of hacking cell phone voice mail messages of celebrities, politicians, crime victims and others in the public eye.
One writer compared the relationship between Americans and their government as a one-way mirror dividing an interrogation room. There are free societies and those with intense state surveillance; where would you rather live?
Update Oct. 28, 2013: Three former News of the World news editors, Greg Miskiw, Neville Thurlbeck and James Weatherup, pleaded guilty to the interception of voicemails and the paper’s “specialist hacker” Glenn Mulcaire, admitted intercepting the messages of the murdered schoolgirl Milly Dowler. Also intercepted were Lord Frederick Windsor, 13 of whose voicemail messages were found on recordings in Mulcaire’s office, Sir Paul McCartney, Sienna Miller, Jude Law, Will Young, Lord Prescott and David Blunkett.
Update: Oct. 30, 2013 — The Washington Post reports that the National Security Agency has penetrated the main communication links that connect Yahoo and Google data centers around the world, giving it access to the accounts of hundreds of millions of people including U.S. residents. By tapping the links, the agency is able to collect information on the recipients of emails, when the messages were sent, as well as actual content like text, audio and video.
Update Oct. 31, 2013: Things have gotten so bad that the NSA issued a press release categorically denying a report in an Italian newsmagazine that it spied on the Vatican during the conclave to select a new pope.”The National Security Agency does not target the Vatican,” NSA spokeswoman Vanee’ Vines said. “Assertions that NSA has targeted the Vatican, published in Italy’s Panorama magazine, are not true.”