A few months back, I took part in a VTLA telephone seminar on oral argument. One of the questions that came up was:
What do you do when you are asked to make a concession at oral argument?
(Paraphrasing here; this was a long time ago.) I shocked my betters on the call, and even caught a little flack by email afterward, with what I thought was a perfectly reasonable answer:
Make concessions at oral argument.
This handy rule of thumb has served me well. Still, every time I share it, people disagree. Vehemently. They talk about credibility with the Court and ethos and pathos. Those who know me better just tell me I’m nuts.
All of that is plainly correct. Nothing is more important than your credibility as an advocate. And one of the quickest ways to lose that credibility is by making ill-advised concessions.
With that in mind, I offer O’Keeffe’s Rules for Concessions:
- The best place to make concessions is in your brief. Generally speaking, briefs are written in
a blandly corporate law officea relaxing place conducive to thoughtful meditation on points of law and their implications. As you develop your argument on brief, you should think about and concede any point that you don’t need to win. This is a purely self-interested exercise; there’s no reason to make your job as a writer any harder than it needs to be. It also has the helpful side effect of making you look reasonable.
- The second best place to make a concession is in your office as you prepare for oral argument. By this point, you will have seen your opponent’s arguments. The possibility of impending humiliation will focus your attention, and the time pressure of oral argument will force you to strip everything unnecessary from your presentation. Self-preservation will force you to identify and stick to the smallest set of points you need to defend to win. You can think of that as the kernel of truth and justice that you must defend to the bitter end, or the small shield of logic and authority that you will hide under in the impending s*&%storm. Either way, you can (and will probably have to) jettison the rest. But if you are making these decisions while you prepare for oral argument, then you are doing so in a place that lends itself to careful thought, while you still have time to consider the implications of possible concessions.
- No concessions from the lectern. Ever. When you get to oral argument, the time for concessions has passed. You have either made them on brief or identified them in your preparation. That’s it. No more concessions once you get to the lectern. Again, don’t make your job harder than it needs to be. Nobody does his best thinking in front of a packed courtroom, staring down a panel of hostile jurists.
- If asked, be honest. If you are asked at argument to make a concession that you have not previously considered, decline. Tell the Court honestly that you had not anticipated the question and are not prepared to answer it, but offer to submit a short letter or brief on the point the next day. (Having already tested you and found you wanting, the Court is unlikely to take you up on the offer.)
Make no mistake: If you apply step 4, you will sound like an idiot–but not as big an idiot as the lawyer who makes an ill-advised concession that loses the case, only to later receive a published opinion with sentences that start like, “At oral argument, Jones conceded that . . . It necessarily follows that . . . This cannot be squared with . . . In light of the concession, we need not address . . . .”
“Concede” is not a word that judges use by accident. It is a big, shiny, red flag that somebody wants to probe exactly how carefully you’ve analyzed a point. If the answer is “not at all,” the time has come to mount a strategic retreat.
If you want to win–or at least to avoid a public shaming–you will work very hard to avoid putting youself in a position where you have to do so. Committing to follow step 4 will make your preparation in step 2 much better. And if you walk into a courtroom unprepared to follow my rules, then you are not really prepared to give an appellate oral argument.