Guest blog post by Judge Pierre H. Bergeron, First District Court of Appeals
Junior lawyers often view appellate oral arguments as a daunting endeavor—I know I did early in my career. I remember my first argument, where I talked way too fast and my whole goal was to survive the argument by sticking closely to my notes and praying that I didn’t get interrupted by the judges.
I wish someone back then had told me to look at argument more like a conversation with the court, and that, in actuality, I should have welcomed questions from the bench.
When you’re before the trial court, you may see the judge on a regular basis and that judge may really become familiar with your case. But at the court of appeals, the only time you have to personally interact with us is the 15 minute argument. So how do you make the most of it? Here are a couple of thoughts:
First, show up! Far too many lawyers submit on the briefs without attending argument. If you are confident that you’re going to lose, I understand that, but otherwise, we want to hear from you. I have walked away from meetings with my fellow judges on cases that were submitted and all three judges had very different perspectives on how to resolve the case. Oral argument would have greatly benefited us (not to mention the respective clients). Argument often helps illuminate nuances in a case that might not come through as well from the briefs and record. So please take the opportunity when you have it.
Second, step back and look at your case objectively. This is often really hard to do, and if you don’t think you’re up to the task, show your brief to a friend (lawyer or not) and get their reaction. As judges, we are typically going to question you on the weakest aspect of your case because if you want to persuade us, you need to assure us that the flaws can be overcome. We’re not just going to give you high-fives for your strong points. But the only way to be prepared is to be honest with yourself about the weaknesses and to think about what questions or concerns we might have. I spent a lot of time as a lawyer practicing on answering the hard questions when preparing for oral arguments. Sometimes I succeeded in persuading the court, and sometimes I didn’t, but hopefully those judges appreciated my efforts at addressing their concerns.
Third, related to that last point, give direct and thoughtful answers to our questions. We’re not trying to trick you or make you look bad—we are asking questions that reveal our concerns with your case. If you duck the question, assure us that “that’s not this case,” or answer the question you’d wished that we had asked, you’re not helping your case, and more importantly, you may be squandering your credibility. You can give direct answers when you’ve spent the time in preparation and fully understand your theory of the case—and there’s no shame in confessing you don’t know if we come at you from leftfield.
With adequate preparation, oral argument should be just a conversation between you and the judges. And with that mindset, you can welcome (even encourage) questions from us. We look forward to seeing you soon!!