By committing to being fully prepared and understanding the goals of oral argument, you will navigate your argument with ease. Use these 6 tips for dealing with hostile or disinterested appellate panels at oral argument.
Part 1 of this two-part article is available here: www.familylawyermagazine.com/articles/preparing-for-appellate-court-questions-at-oral-argument-part-1
By Matthew P. Barach, Family and Appellate Lawyer
1. Don’t Return an Appellate Panel’s Hostility in Kind
You may face not only a “difficult” judge but also an entire panel hostile to you or your argument or both. Perhaps it is your tie? But it is more likely your argument rubbed a panelist or even a panel the wrong way. So, what do you do?
You must never reply in kind. Always avoid becoming hostile. Contain your anger. Never look annoyed. Remain patient with the appellate panel. Do not provide a further opportunity for the appellate panel to turn even more against you and your argument.
This may be difficult because you realize your well-crafted brief is for naught.
But in those moments, stay committed to your argument, and to your client. Return to your theme, make your points, and address directly the panel’s questions.
Be comforted with this famous exchange. A noted barrister, F. E. Smith, had argued at some length in an English court when the judge leaned over the bench and said: “I have read your case, Mr. Smith, and I am no wiser than I was when I started.”
To which the barrister replied, “Possibly not, My Lord, but far better informed.”
Smith – who later became a famous judge, Lord High Chancellor of Great Britain, and the first Earl of Birkenhead – could reportedly carry off such snappy rejoinders with impunity.
Do not emulate Mr. Smith – but be mindful of his sentiments to help you get through your own oral argument.
Something further to consider:
“Very often in everyday life, one sees that by losing one’s temper with someone who has already lost his, one does not gain anything but only sets out upon the path of stupidity. He who has enough self-control to stand firm at the moment when the other person is in a temper, wins in the end. It is not he who has spoken a hundred words aloud who has won; it is he who has perhaps spoken only one word.” — Hazrat Inayat Khan, Mastery through Accomplishment
2. Beware of Making Concessions at Oral Argument
Be careful what points you concede at oral argument.
There are moments when conceding a minor point validates the integrity of your argument. But be careful to not concede a major point of your argument under the glare of the judicial spotlight.
Your concession gives away your case.
Stick to your argument. Avoid at all costs giving away a crucial fact. Be polite, but there is a limit to your courtesy with the appellate panel.
You may believe you are being reasonable in your response when you make a concession. Take the following example: “Counsel, even if we agree with your argument the husband overpaid his alimony, does it really matter if we now remand the matter, now that the term of alimony has ended?”
But your answer must always be: “Yes, Your Honor, it does matter – and here is why…”
The result has to matter. It must matter. If it does not matter, then you lose the case.
A judge may be seeking to test the validity of your argument.
Take another example.
You are defending a trial court’s alimony judgment on the ground the trial judge considered all the major factors under the statute in fashioning an award of alimony.
Counsel for the husband contends alimony is unwarranted due to the large division of marital assets the wife received. You receive the following loaded inquiry from the appellate court:
Counsel, surely you would agree with me if a person has received over ten million dollars of assets in a property division they have sufficient assets to enable them to support themselves independent from the other party and without any alimony?
Your mind thinks what a wonderful opportunity to demonstrate how I am a reasonable person. However, if you concede the point, you abandon the fundamental premise of your case: alimony is independent from the property division!
By being agreeable on this singular point, you allow the appellate panel to conclude your client did not need alimony. The matter ends, and you end up with the following opinion: “Counsel acknowledged at oral argument due to the large grant of property division to the wife, she lacked the requisite need for alimony. We therefore remand this matter to the trial court for further findings based upon our decision.”
In the cozy comfort of your office, you regret being so “reasonable” with the appellate court.
So, what is your response to the loaded question from the panelist?
Try this: “No, Your Honor, based upon the facts of this case, I do not agree with your premise – and neither did the lower court because the trial judge specifically addressed the amount of the property division and actually took into consideration in the award of alimony to the wife…”
Never forget your essential purpose to argue and persuade the appellate court of the logic of your argument. Be careful with your politeness and reasonableness when it intersects with your purpose.
3. The Aloof/Disinterested Appellate Panel
Courts are very busy places. Appellate courts can be even busier places. They are the bakeries of the law distributing legal precedents instead of delicious “M&M” cookies. You may be the first argument of the day, the middle, or even the last. Your number is called and then you go.
You start. Nothing. You keep going.
You make it through your well-planned and memorized opening, but the expected questions are not flowing from the appellate panel.
You are last up, late in the afternoon, and the appellate panel is disinterested in the one family law case of the day.
These are times to not think and just do. All of your preparation results in you having the law and the record down cold. Make your argument, focus on your theme, and go for it.
Move succinctly to each major point in your case.
Do not let your mind wander. Do not think the appellate panel is for you or against you. In these moments, be reminded of the words of the great Bill Belichick: Just do your job.
When confronted with the disinterested panel, focusing on your argument demonstrates to your client that you made the best possible case to the appeals court.
4. Invite Questions from Your Quiet Panel
Consider inviting questions from your quiet panel. For example, state: “Unless the court has any further questions on the wife’s inheritance, I will turn to the other items in the division of the marital estate.”
This brings me to another strategic consideration.
5. Include a Landmine in your Argument
At times it is useful to include a “landmine” in an argument, just to see if it explodes. For example, you are before the appeals court on a custody removal matter and a recent decision issued in a neighboring state adopts a new standard for child custody removal.
The new standard is potentially beneficial to your client in your case before the appeals court. Point out, in the context of your argument, the other state’s newly adopted standard, to check if there is any interest in adopting a new standard in your jurisdiction.
6. Always Stop While You’re Ahead
Time limits are constraints upon the time you are allowed under the rules of the appellate court for oral argument. They are similar to word and page maximums contained in the rules for written briefs. And so likewise, there is no “minimum” amount of time given for your oral argument by the appeals court.
When you find yourself ahead, which is usually when the court is not pressing you or is seemingly agreeing with your argument, recognize it is time to conclude.
The actual time for oral argument is remarkably short. A brief argument can be enough. It is not a violation of any rule to use less time than allotted.
If you have nothing further to add for the appellate panel, then do not be afraid to quickly and quietly conclude your argument. If there are no further questions forthcoming, have the confidence to stop.
A good way to handle this situation is the following: “If the panel has no further questions, I will stop here and rest on our submissions. Thank you.”
Or you can conclude with: “For all other issues, I rely on my brief.”
Keep in mind the following:
“Better to remain silent and be thought a fool than to speak and to remove all doubt.” – Abraham Lincoln
In closing, Alan L. Dworsky described oral argument in the following precise way:
“Oral argument is like jazz. It is imperfect, unpredictable, and risky, yet immediately personal and powerful.”
By committing to being fully prepared and understanding the goals of oral argument, you will navigate your oral argument with ease and make music for all of your clients.
 Scalia & Garner, “Making Your Case” 199.
 The insult to the injury!
 For the uninformed, Bill Belichick is the greatest coach in the history of the National Football League.
 From The Little Book on Oral Argument (Hein, William S. & Company, , 1991) by Alan L. Dworsky.
This article has been edited and excerpted from The Family Law Guide to Appellate Practice (ABA Book Publishing, 2019), which is available at www.americanbar.org. The founder and principal of Barach Family Law Group in Massachusetts, Matthew P. Barach is a family law trial attorney and appellate family law specialist. www.barachfamilylaw.com
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