Appellate Advocacy in the United States
Arguing before the Supreme Court
This covers the following:
Preparation
Briefs are different from oral argument. A complex issue might take up a large portion of the attorney´s brief, but there might be no need to argue that issue. Merits briefs should contain a logical review of all issues in the case.
Oral arguments are not designed to summarize briefs, but to present the opportunity to stress the main issues of the case that might persuade the Court in one party favor.
Allotted time passes quickly, especially when numerous questions come from the Court. Attorneys should be prepared to skip over much of your planned argument and
stress their strongest points.
Some lawyers find it useful to have a section in their notes entitled “cut to the chase.” They refer to that section in the event that most of their time has been consumed by answering questions posed by the Justices. This allows them to use the few precious minutes remaining to stress their main points.
If the attorney´s argument focuses on a statute, regulation, or ordinance, he or she should
be sure that the law is printed in full in one of his/her pleadings so that he or she can refer the Justices to it and they can be looking at it during your argument.
Attorneys should not not bring numerous volumes to the lectern. One notebook will suffice. They should know the record, especially the procedural history of the case and they. They have the opportunity to inform the Justices about facts of which they are not aware. It is quite effective when attorneys can respond with the volume and page where the information
is located, and to quote from the joint
appendix.
The following are good sources of information for arguing
counsel:
- Making Your Case, the Art of Persuading Judges, by Justice Antonin Scalia and Bryan Garner;
- Supreme Court Practice (10th ed.), by Stephen Shapiro, Kenneth Geller, Timothy Bishop, Edward Hartnett and Dan Himmelfarb; and
- Supreme Court and Appellate Advocacy: Mastering Oral Argument (2nd ed.), by David Frederick.
Time
Your argument time is normally limited to 30 minutes.
You need not use all your time. Counsel for the respondent
in Whitfield v. United States, 543 U. S. 209 (2005) successfully
argued for only 10 of the allotted 30 minutes. Other
examples of successful brief arguments are: Burgess v.
United States, 553 U. S. 124 (2005) (respondent argued seven
of the allotted 30 minutes); Logan v. United States, 552 U. S.
23 (2007) (respondent argued 10 of the allotted 30 minutes);
United States v. Clintwood Elkhorn Mining Co., 553 U. S. 1
(2008) (petitioner argued 17 of the allotted 30 minutes);
United States v. Ressam, 553 U. S. 272 (2008) (petitioner argued
17 of the allotted 30 minutes); and United States v.
Marcus, 560 U. S. 258 (2010) (petitioner argued 16 of the
allotted 30 minutes).
When the Marshal activates the white light, there are five
minutes of argument time remaining. When the red light
comes on, there is no argument time remaining. If you are
answering a question from a Justice, you may ask the Chief
Justice for leave to continue your answer. At that point,
you should only respond to pending questions, and should
not conclude with a summation.
A petitioner’s counsel who wants to reserve time for rebuttal
should, about five minutes before the allotted time is
to expire, say, “If there are no further questions, I would like
to reserve the remainder of my time for rebuttal.” Petitioner’s
counsel then sits down, and the Chief Justice calls on
respondent’s counsel for argument. Respondent’s counsel
proceeds to the lectern, waits for acknowledgment by the
Chief Justice, and then opens with: “Mr. Chief Justice and
may it please the Court.” When respondent’s counsel has
finished and gathered all items from the lectern, petitioner’s
counsel should return to the lectern and wait for acknowledgment
by the Chief Justice. At this point, the Chief Justice
will inform counsel of the time remaining for rebuttal.
You may begin your rebuttal at this time without having to
repeat, “Mr. Chief Justice and may it please the Court.”
Promptly and quietly vacate the front argument table
after the Chief Justice announces that “The case is submitted.”
Counsel at the back-up tables should move to the
front tables for the next case. You may move to the backup
table if you wish to listen to the next argument.
Protocol
The Supreme Court is not a jury. A trial lawyer tries to
persuade a jury with facts and emotion. Counsel should try
to persuade this Court by arguing points of law.
Your argument should focus only on the question or questions
presented in the petition that was granted. Do not
deviate from it.
Ordinarily, the Justices will know whether you are making
your first argument before the Court. Be assured that some
first-time arguments have been far superior to presentations
from counsel who have argued several times.
Counsel for the petitioner need not recite the facts of the
case before beginning argument. The facts are set out in
the briefs, which have been read by the Justices.
You should speak in a clear, distinct manner, and try to
avoid a monotone delivery. Speak into the microphone so
that your voice will be audible to the Justices and to ensure
a clear recording. Avoid having notes or books touch the
microphones, since this interferes with the recording process.
Under no circumstances should you read your argument from a prepared script. You should not attempt to enhance
your argument time by a rapid fire, staccato delivery.
Exhibits can be useful in unusual cases. Be very careful
to ensure that any exhibit you use is appealing, accurate, and
capable of being read from a distance of about 25 feet. Be
sure to explain to the Court precisely what the exhibit is.
Counsel must advise the Clerk of a request to use an exhibit
well in advance of argument. For a good example of an exhibit
used at oral argument in this Court, see Shaw v. Reno,
509 U. S. 630, 658 (1993).
Never interrupt a Justice who is addressing you. Give
your full time and attention to that Justice—do not look
down at your notes, and do not look at your watch or at the
clock located high on the wall behind the Justices. If you
are speaking and a Justice interrupts you, cease talking immediately
and listen.
When a Justice makes a point that is adverse to you, do
not “stonewall.” Either concede the point, as appropriate,
or explain why the point is not dispositive of your case and
proceed with your argument.
Do not “correct” a Justice unless the matter is essential.
In one case a Justice asked a question and mentioned
“waiver.” Counsel responded by stating that a “forfeiture”
rather than a “waiver” was involved. The distinction was
irrelevant, but the comment generated more questions and
wasted valuable time.
Be careful to use precise language. In one case, counsel
stated, “The Supremacy Clause does not apply in this case.”
A Justice responded: “The Supremacy Clause applies in
every case. Perhaps counsel meant that the statute in question
does not conflict with the Supremacy Clause.”
Be careful not to use the “lingo” of a business or activity.
The Court may not be familiar with such terms, even if
widely understood within that business or activity. For example,
you should not say “double-link connector” or “section
2b claims” unless you have explained what those terms mean.
Similarly, do not use the familiar name of your client during
argument. For instance, say “Mr. Clark denied the request”
rather than “Buddy denied the request.”
Strunk and White warned us to “avoid fancy words” when
writing. The same is true for oral argument. Counsel used
the word “orthogonal” in a recent case. This caused a minor
disruption that detracted from the argument. Counsel
could just as easily have said “right angle.”
Do not refer to an opinion of the Court by saying: “In
Justice Ginsburg’s opinion.” You should say: “In the Court’s
opinion, written by Justice Ginsburg.”
If you quote from a document verbatim, tell the Court
where to find the document (e. g., page 4, appendix B to the
petition).
Attempts at humor usually fall flat. The same is true of
attempts at familiarity. For example, do not say something
like: “This is similar to a case argued when I clerked here.”
Do not denigrate opposing counsel. It is far more appropriate
and effective to be courteous to your opponent.
Avoid emotional oration and loud, impassioned pleas. A
well-reasoned and logical presentation without resort to histrionics
is easier for listeners to comprehend. Do not argue
facts. Argue to the question or questions of law presented
in the petition for a writ of certiorari that was granted.
Counsel for respondents are often effective when they
preface their argument by answering questions that petitioner’s
counsel could not answer or answered incorrectly or ineffectively.
This can often get you off to a positive start.
If your opponent is persuasive on a certain theme during
argument, especially one that was not anticipated, you
should address that issue at the outset of argument or rebuttal
argument rather than adhere to a previously planned
presentation. You take a great risk if you ignore a persuasive
point made by your opponent.
Rebuttal can be very effective. But you can be even more
effective if you thoughtfully waive it when your opponent
has not been persuasive. If you have any rebuttal, make it
and stop. There is no requirement that you use all your
allotted time.
Answering Questions
You should assume that all of the Justices have read the
briefs filed in your case, including amicus curiae briefs.
Expect questions from the Court, and make every effort to
answer the questions directly. If at all possible, say “yes”
or “no,” and then expand upon your answer if you wish. If
you do not know the answer, say so.
Anticipate what questions the Justices will ask and be prepared
to answer those questions. If a case with issues similar
to yours was previously argued in this Court, consider obtaining
a transcript of the oral argument in that case to review.
That might help you anticipate questions that those
Justices who heard the previous case might ask in your case.
If a counsel stumbles on a question from the Court or does
not fully answer it, it is a good tactic for another attorney
supporting that counsel’s side to begin argument by repeating
the question and answering it correctly and completely.
The other counsel will have had time to reflect on the initial
question and perhaps develop a better answer.
A Justice will often ask counsel seeking to establish a new
precedent: “Do any cases from this Court support your position?”
Be ready for the question, but be careful to cite only
those cases that truly support your position. Do not distort
the meaning of a precedent. The author of the opinion is
likely to have a clear memory of exactly what the opinion
says. If you are relying on a case that was announced by a
“plurality opinion,” be sure to mention that there was no
“opinion for the Court” in the case.
In appropriate cases, suggest to the Court that bright-line
rules should be adopted and suggest what they should be.
If a Justice poses a hypothetical question, you should respond
to that question on the facts given therein. In the
past, several attorneys have responded: “But those aren’t the
facts in this case!” The Justice posing the question is aware
that there are different facts in your case, but wants and
expects your answer to the hypothetical question. Answer,
and thereafter, if you feel it is necessary, say something such
as: “However, the facts in this case are different.” A “yes”
or “no” answer might be suitable for a narrow question.
Nevertheless, your answer should be carefully tailored to fit
the question. A simple “yes” or “no” in response to a broad
question might unintentionally concede a point and prompt
a follow-on question or statement which ultimately may be
damaging to your position.
When other Justices ask questions before you complete
your answer to the first Justice, you should take a commonsense
approach in determining which of the questions to answer
first. You might consider responding to the last question,
indicating, if you believe it to be the proper thing to do,
that you will answer that question first before completing
your answer to the prior question. Alternatively, you may
indicate to the last questioner that it would assist you in
making your response if you could first conclude your answer
to the first Justice’s question, at which time you would complete
your response to the first Justice. There is no definite
rule of protocol. However, ordinarily if two Justices start
to speak at once, the junior Justice will withdraw in deference
to the senior. Perhaps by analogy you could respond
to the senior Justice’s question first, and then address questions
from junior Justices.
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