Oral Argument Lessons from the Symposium
By all accounts, the Virginia State Bar's recent appellate symposium on oral argument was a big hit. Unfortunately, I wasn't able to attend--I was tied up at my day job, posing as a mild-mannered commercial litigator--but I've heard from folks who made the trip that Justice Keenan's talk was one of the highlights. Here are some of the key points that (I'm told) she made:.jpg)
- During oral argument at the Supreme Court of Virginia, about half of the questions from the bench are designed to influence another justice.
- Oral argument changes the outcome of cases about 10% of the time.
- When asked, Justice Keenan disagreed with the statement that you can lose a case at oral argument, but you cannot win it.
- Counsel's credibility is very important.
- Justice Keenan will prepare questions in advance for oral argument.
- In preparing for oral argument, Justice Keenan will read the briefs several times. If she is writing the opinion, she may read the briefs up to 10 times.
- She reads thousands of pages of briefs and appendices each term.
Because we are allotted so little time for oral argument, this sort of inside perspective is priceless. It allows us as practitioners to maximize our effectiveness by tailoring our approach to our audience.
What can we learn from Justice Keenan's presentation? Here are at least 5 points:
- Prepare, prepare, prepare. And then prepare some more. If the Justices are reading the briefs ten times, you should as well. You need to know the law and the record cold.
- Oral argument matters. It can change the outcome in one out of ten cases, and not only in a bad way. Don't phone it in. You still have a chance to affect the result in a positive way for your client.
- But the briefs matter more. As Frank Friedman puts it, oral argument is fleeting, but the briefs linger. Justice Keenan spends a massive amount of time with the briefs, and reads thousands of pages a term. Assuming that she's remotely representative of her colleagues, we can derive two lessons from this. First, craft your briefs carefully, because they will be studied. And second, cut the unnecessary verbiage and weak arguments. Put yourself in the position of someone who has to read thousands of pages of legal writing. Wouldn't you appreciate focus, brevity, and clarity? And on the flip side, wouldn't you find repetitive or specious argument infuriating? (Related point: for Pete's sake, quit it with the needless appendix designations--the Court has the whole record.)
- And reputation may matter still more than that. Take it from someone who heard it from someone who heard it from a Justice: credibility counts. Make a baseless or misleading argument today, and the Court will see you coming tomorrow.
- Recognize the friendly question. As intimidating as it is on the bench--and is intimidating--the Court is trying to find the right legal answer to the question presented. Getting there is a collaborative process. You are part of that process. Sure, that last question might seem like a hardball. But in reality, it might be a lifeline--one Justice handing you your last and best chance to answer a colleague's legitimate concern. Take that chance. Don't dodge the question. Answer it directly, and swing for the fences.
Finally, many thanks to Justice Keenan for taking time out of her schedule to help educate the bar and improve the quality of appellate advocacy in Virginia. We wish her the best of luck with her confirmation.
I would offer slight caution as to your third point's parenthetical about excessive cites to the appendix. While I agree such cites are, in many cases, unnecessary, the standard is whether "there is ANY possibility that the appellee may question the statement." Rule 5:17(c)(3).
Wade, I totally agree. Appendix citations don't bother me in the least. I actually find them helpful when I'm writing a response. But it drives me nuts when people designate basically the entire record for inclusion in the appendix. After the petition stage, we know where the arguments are going to be. There's no need to include the entire testimony of a witness nobody mentioned, or throw in opening statements or damages evidence when they are not an issue.
Jay, I see now that I misread "designations" as "citations", which makes my earlier comment slightly off-topic. I also offer, however, the caution that one should err on the side of inclusion rather than exclusion from the appendix.
Although it is rarely used, the Court can penalize a party for excess designation. The penalty is traditionally requiring the party to pay the cost of the excess appendix contents. However, this "penalty" is often a hollow one, since in those cases where the Court might actually seek to punish a party (usually the appellant), the appellant is already paying the costs. See Rule 5:32(f) and (g). Of course, the real penalty is that the Justices will be frustrated with any attorney who fails to properly deisgnate the appendix (by incliding too much or too little).
I recognize that designation is beyond the scope of this posting but Fred is right about the Court can sanction for too much. However, there is a case, Patterson v. City of Richmond, 39 Va. App. 706, 717, 576 S.E.2d 759, 765 (2003) that seems to say that if it is not in the appendix, the Court will not consider it - even if in the record. Of course, there are rule cites - 5A:25(h) and 5:32(h) that seem to be contrary authority. Also see - Lewis v. Culpeper County Dept of Social Services, Rec. 2575-06-4 (Va. App 7/31/2007)(Patterson distinguished in that Rule 5A:25(h) not cited)
It is also true that the Court can mention wayward ways in the opinion itself. See Metrocall of Delaware, Inc. v. Continental Cellular, 246 Va. 365, 376-77 (1993) OUCH! Who wants that! It also hurts credibility.
Sandy Sanders