Here’s a guest post from my partner and longtime friend of De Novo, Monica Monday, in which she owns up to her personal demons (such as they are):
I admit it. I am an appellate argument junkie. This has been a long-standing problem, but when the Supreme Court of Virginia began releasing audio recordings of its oral arguments earlier this year, my habit took on new dimensions. I can now listen to hours of appellate argument without leaving the house, car, or office. This has brought new purpose to my long daily commute (I hope the legislature will not make this illegal), and I’m totally hooked.
But what’s the big deal, concerned friends ask – audio recordings of Fourth Circuit arguments have been available for some time now. It’s true, so what is the big deal? Supreme Court recordings provide a look at the Court as a whole and how the justices interact with each other. Except for the rare ocasion when it sits en banc, the Fourth Circuit hears most arguments in panels of three, limiting a study of that Court as a whole.
Whatever the reason for my obsessive interest in these audio recordings, they have reinforced some suspicions I have had about the Supreme Court, and appellate arguments in general. And, they have provided some new insight as well.
First, the justices are talking to each other when they ask their questions. This is something that is hard to follow during the heat of oral argument. However, listening to the argument after the fact, it is clear that many questions are not really for me, but are directed towards another justice, or the entire Court. The justices are really discussing the case with each other and trying to convince their colleagues on the bench of their position.
So does this mean that my answers don’t matter? Am I just a pawn on the Court’s chess board? Not at all. My answers to those questions can influence that private, judicial discussion – and the ultimate outcome of the case – by showing why my position is right.
Second, some questions are not at all what I thought they were at the time. During argument, it can be difficult to really listen to the Court’s questions when you are focused on delivering the argument you have prepared. Things become clearer with the luxury of hearing the argument again without the stress of being in the middle of it. In particular, I have noticed that some questions were not exactly what I thought they were at the time; rather, the Court was asking something slightly different.
Good listening at oral argument is hard. It requires us to focus on the Court first, and our prepared argument second. Because the Court is the decision-maker, though, we must understand its concerns and questions so we can respond meaningfully. If we haven’t answered the Court’s questions, then we have not done our jobs as oral advocates. So, be flexible during oral argument. Weave the important points of the argument into your answers, but make sure you are addressing the issues the Court wants to discuss.
Third, the Court genuinely wants to understand your argument and the ramifications of its decision. This is why the justices ask hypothetical questions – to test the boundaries and effect of its ruling in future cases involving different facts. And this is why it may press the advocate to define the scope of the ruling he seeks and to explain the effect of that ruling. Concisely explaining the scope and limiting principles of your position will greatly assist the Court in understanding the effect of adopting your position, and becoming comfortable with it. Embrace the opportunity to help the Court do its job well.
Finally, audio recordings only tell you half the story. Listening to an audio recording of an argument I heard – or delivered – is a different experience than being there live. The visual, relational, and intangible aspects of the live argument cannot be captured on an audio tape. Thus, many essential ingredients to an effective oral argument, such as genuineness, credibility, eagerness, passion, engagement, and rapport with the Court are not fully experienced on an audio recording.
Therefore, being there in person is the only way to fully appreciate the argument – although that won’t stop me from listening. And, you should not agree to argue your case by phone – that separation prevents full engagement with the Court.
You can access the audio recordings from the Court’s merits arguments since January 7, 2014, at https://courts.state.va.us/courts/scv/oral_arguments/home.html.