May 2008

Convincing a Federal Court of Appeals

By Judge Richard A. Posner

The implicit working assumption of most of the lawyers who argue before my court seems to be that the judges have the same knowledge and outlook as the lawyers. That is wrong.

By virtue of not being a specialist and not having much time for each case, the judge depends on the lawyers to provide enough background in the field out of which the case emerges to orient (the judge). Unless the case arises in one of the staple areas of the docket—such as, for my court, sentencing—or involves a purely procedural issue, the lawyer must not assume that the judge knows much about either the field or the case itself, and has to make both of these terrains familiar and comfortable to (the judge). In fact, you have to spoon-feed the judge. The physicality of this metaphor is deliberate because effective oral advocacy has physical dimensions. If, for example, your case turns on the meaning of a statute, you should print the statute in your brief; and if it turns on the interpretation of a contract, regulation, or any other document, rather than a statute, then you should, if space permits, print that document in your brief. Then the judge has at hand the essential materials for following your argument.

You should make the brief, as far as possible, completely self-contained, intellectually as well as physically. So, you should explain not only what the case is about and what the background law is about but also why the case is important (or unimportant)—what if anything turns on the outcome, either for the parties or for some larger community.

A common puzzler is when there are multiple parties in the caption of a case yet the briefs are silent about most of them, who may have fallen by the wayside in the course of the litigation or may have been named as parties for technical reasons or completeness of relief. Tie up the loose ends; do not make the judge approach your argument with furrowed brow or waste your time at argument dispelling mysteries that a sentence in your brief could have cleared up.

If you engage in the imaginative exercise that I have suggested is the key to successful appellate advocacy—that of imagining yourself in the judge's shoes—you will quickly see that only rarely is it effective advocacy to try to convince the judges that the case law compels them to rule in your favor. Just think: if the case law relating to the case at hand were one-sided, would the case have gotten to the appellate stage—unless, of course, there was some arguable error not involving the interpretation of a case (in which event, the case law would drop out as a determining factor)? And if it did, would oral argument have been granted instead of the appeal being decided either on motion or without argument? The answer is probably not.

The second biggest mistake that appellate advocates make—after exaggerating how much the judges know about or are willing to devote time to learning about a given appeal—is to think that they can win by rubbing the judges’ noses in the precedents. In an argued civil case, as I have just been emphasizing, there probably is no dispositive precedent—otherwise the case would probably not have gotten to the point of an orally argued appeal. And if there is no dispositive precedent, then unless the appellate judges are very gullible, it is futile to argue the case as if there were.

In a case that is not controlled by precedent, the task of the advocate is to convince the court that the position for which he or she is contending is the more reasonable one in light of all relevant circumstances, which include but are not exhausted by the case law, the statutory text, and the other conventional materials of legal decision making. I say “reasonable” rather than “correct” to give due recognition to the ineliminable element of discretion in the decision of a case that is not ruled by precedent or other conventional sources of law.

The most effective method of arguing such a case is to identify the purpose behind the relevant legal principle and then show how that purpose would be furthered by a decision in favor of the advocate’s position. The case might involve the use of extrinsic evidence to show that a contract was ambiguous. The good advocate would explain what the purpose or function of the rule generally excluding such evidence is and what the purpose or function of the exceptions are; and having thus identified the relevant goals of the rule and the exceptions, then try to show how his or her position would further those goals.

After the advocate has extracted the purpose of the common law doctrine or the statute from the case law and shown how the purpose would be promoted by the position for which he or she is contending, the advocate will have to show that the position does not violate settled law, and this will require further discussion of the cases. So, precedent will enter at two stages in the argument: as a source of governing principles and as a constraint on efforts to realize those principles in the novel setting of the case at hand. At neither stage, however, will the good advocate be arguing that the result for which he or she was contending is already “in” the law.

I have addressed mainly the briefing of an appeal, but what I have said also applies in the main to the oral argument. In my court, as today in most courts, the judges will have read the briefs in advance of the argument. You will therefore gain nothing from reading or repeating what we have already read. You may make your salient points, and if you have thought of something really good that you left out of your brief, you should mention that. But beyond that, the anticipation of the judges’ questions and a thorough grounding in the facts and law of your case are the most effective measures of preparation.

It is generally a mistake in oral argument to try to draw analogies between the present case and previous decisions. Unless a previous case is truly on point (and, to repeat my earlier point, why then is there an argued appeal?), your effort to explain the case to the judges and draw the links between it and the case at hand is likely to confuse the court and deflect you from the essential issue.

Let me close this very brief discussion with a miscellany of do’s and don’ts of oral argument:

1. Try to dress well for oral argument. Make the judges think that you are a serious person who takes the court seriously.
2. Never waive rebuttal in advance, which means always be sure you have enough time left to rebut; otherwise, the appellee’s lawyer may try to pull the wool over the judge’s eyes knowing that you will not be able to correct his misstatements. But if, having reserved time for rebuttal, you find that you have nothing to say, perhaps because it is obvious that your opponent has said nothing to move the judges, then waive rebuttal rather than wasting the judge’s time.
3. If you are the appellee, make sure your argument is responsive. Do not go with a prepared spiel that rehashes your brief. The judges will want to know how you meet the specific points made by the appellant in argument.
4. Never read your argument. It makes it difficult for the judges to ask questions because when a text is read aloud, there is a dearth of the usual pauses that enable another party to a conversation to get a word in edgewise. And it is by answering questions effectively that an oral advocate maximizes his or her effectiveness. This means that you must be prepared to make your essential points by extending your answer to the judge’s questions. If a judge asks A and you want very much to make point B, then having answered A build a bridge to B so that you can make point B as part of your answer to A.
5. Rehearse the argument of the appeal. Have a mock oral argument at which your partners or associates or cocounsel pepper you with the sort of questions that the judges are likely to ask. It is best if the moot panel is as ignorant of the case as the judges are likely to be. Make sure that the panel asks hypothetical questions because a number of judges like to ask such questions to determine the implications of the position being argued. Never say to a judge who asks a hypothetical question, “You are asking a hypothetical question.”
6. Do not bluff or wing it if a judge asks you a question that you cannot answer. If the question goes to the heart of your case, ask for leave to file a supplemental brief. At the same time, do not be gun-shy, or give an impression of disingenuousness or lack of candor by refusing to make unavoidable concessions. You do not have to worry too much about conceding your case away on oral argument. Judges will not hold lawyers to concessions made in the heat of the argument unless they have decided to resolve the case against the lawyer who made the concession anyway, and will merely use the concession to strengthen the opinion.
7. Do not repeat in your prepared argument (before you are hit with questions) what you have already said in your brief. Either say something new or repeat merely the salient points of your argument. Remember not to get bogged down in the cases.
8. Wherever possible, use visual aids—not charts or tables that the judges will not be able to read, but pictures or objects.

I can summarize my advice to appellate advocates very simply: be brief, be clear, be simple, be vivid, be commonsensical, avoid legalisms, and do not be afraid to spoon-feed us—we will not bite your hand.

Copyright © 2008, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.