Oral argument is the most visible part of appellate practice. And while lawyers differ on whether a good argument will change the outcome of your case, we can all agree that it’s the thing your clients and colleagues are most likely to see you doing. Not to mention the thrilling proposition that there may one day be a blurry artist’s rendering of you inside the Supreme Court.

So, it’s natural to get anxious. Here is a beginning-to-end guide on how to conduct an oral argument effectively.

Preparing for the oral argument

First, and most important, write an excellent brief. If you’ve got a choice between mooting your brief and mooting your argument, moot the brief. Have it read for clarity to make sure you read your cases accurately and, most importantly, so a dispassionate colleague can kill your darlings before they escape out onto the docket.

Next is prepping for obvious questions. In every argument, you should have an answer to at least these:

1. What is your best case?
2. How do you distinguish your opponent’s best case?
3. For any vital fact, where in the record can we find it?
4. For any vital fact, how do you disagree with your opponent’s characterization of that fact?
5. What specific relief are you asking for?
6. Where was your objection preserved, and why is it procedurally appropriate to grant you relief?

Then there are the far trickier questions to prepare for. For instance:

1. If a fact or point of law is hotly contested, can you concede it and still win?
2. If you win, how will it affect other cases?
3. Do we need to overturn any authority?

You can’t anticipate every question. But the key to making an educated guess is taking your opponent’s argument seriously.

Far too often, we don’t dedicate enough energy and effort to understanding our opponent’s position. The most cringe-inducing arguments are usually conducted by lawyers who couldn’t have imagined losing before they walked in.

Aside from anticipating questions, you should have the first 45 seconds or so of your argument memorized. Begin with “May it please the court,” and provide a brief roadmap of the point you will argue.

Roadmapping is vitally important. First, it forces you to structure what you are going to say. Second, courts tend to interrupt you less since they know you are planning to address an issue later. Third, and perhaps most importantly, roadmaps let you indicate you don’t intend to argue a particular issue and, if the court is merciful, that can help you focus on your strongest arguments.

A good roadmap allows you to listen to questions, respond thoughtfully and return to your planned argument.

A key part of roadmapping is developing a pithy description of your argument. Look, for instance, to how then-U.S. Solicitor General Elizabeth Prelogar began her argument in United States v. Rahimi a case about whether the Second Amendment allowing disarming citizens subject to restraining orders:

“As this court has said, all too often, the only difference between battered woman and a dead woman is the presence of a gun.” Prelogar then goes on to describe the due process that someone receives before a restraining order can be issued, and the rule established in earlier cases that the right to gun ownership is reserved for “law-abiding citizens.” Prelogar, as an expert, knows that the first minute is the most important real estate in her argument. If she was stopped there and asked questions for the next 10 hours, she’d still have gotten out the elevator pitch for why she should win.

Finally, before you argue, you should have a conclusion mapped out. You won’t always get a chance to give your conclusion because questions may consume your time. But a conclusion adds a veneer of polish to your argument. A good conclusion can be very simple: “Because [a short summary of your argument], we ask that this honorable court [the relief you are seeking]. “Because the trial court abused its discretion in granting this motion under the incorrect standard, we respectfully request that this court reverse that decision and remand with direction to follow the correct standard” is a totally fine conclusion that reinforces your strongest points.

In short, think about and structure your argument like a good brief, even as you consider the possibilities for interruption.

What to do during the argument

  • Approach oral argument as an opportunity to address the judge’s concerns. Often a great oral argument is an argument where a judge asks you a question you never thought about before (e.g., whether your case is in the procedurally correct posture, whether an objection was truly preserved or whether there might be some other form of relief you could ask for). Even if you stumble, it is far better to learn about a problem with your case at the argument, while it is still potentially fixable, rather than in the opinion.

  • Never make the argument about you. Your opening should never contain any more information about you than your name and the name of your client. It should not contain an admission that this is your first time arguing, or that it’s a lovely day or that you’re so excited to be in front of this wonderful court. Get to your roadmap.

  • Listen to the panel’s questions and think before you respond. Take the advice you would give to your clients during a deposition: Stop talking when you get the question, listen carefully to the question and take a beat to consider. Great orators the world over know the power of a pointed pause—taking a breath establishes you as a thoughtful advocate.

  • Quickly and candidly, acknowledge your bad facts. “Isn’t it true, Mr. Lawyer, that you only objected AFTER the witness answered the question?” Many lawyers are tempted to dodge and weave at this point. But again, just as in a deposition, begin your answer with yes or no and do not force the judge to chase you down because it will irritate the judge and reduce your credibility. A bad fact acknowledged quickly will bring far less attention than a bad fact tracked down after cross-examination.

  • Answer hypotheticals directly, no matter how apt you think it. Excise “that is not this case” from your legal vocabulary. Begin your answer with a yes or no, and only then explain the distinguishing factor from your case.

  • Be agreeable. But not too agreeable. Judges are sometimes going to ask you to concede things that wreck your case, and you need to anticipate what those things are in advance so you can know the subtle distinction between a concession you can make to build credibility for the rest of your argument and a concession that will result in the ruling against you being written before you can Uber home.

Concluding thoughts

Remember, the point of oral argument is not for you to look brilliant. It is to get a preview of what the court thinks about your case. If you welcome every question like an old friend, you will develop a reputation as a forthright advocate, even if you cannot win every case.

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Ben Sessions, a partner at Sessions & Fleischman, has been lead counsel in more than 65 jury trials, and he has been lead counsel in numerous cases involving novel statutory and constitutional issues before the Supreme Court of Georgia and the Georgia Court of Appeals. He’s a frequently presenter on motions and trial practice. He can be reached at [email protected].

Andrew Fleischman, a partner at Sessions & Fleischman, is a trial and appellate lawyer specializing in Georgia criminal and First Amendment law with an experience in oral arguments. He has been published in The New York Times, The Hill, Slate, The Daily Beast, Arc Digital and the Ordinary Times. He can be reached at [email protected].

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ABAJournal.com is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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3. BigLaw firm gets benchslapped for downplaying…

Appellate Practice

BigLaw firm gets benchslapped for downplaying university deception in appellate brief’s facts section

By Debra Cassens Weiss

February 28, 2024, 11:31 am CST

Gibson, Dunn & Crutcher went too far when it used the facts section of an appellate brief to present “a one-sided narrative” that downplayed adverse findings against its client, according to an appeals court.

The California Court of Appeal’s Fourth Appellate District criticized Gibson Dunn in an opinion that reduced a $22.3 million award against Zovio Inc. and Ashford University, an online school that is owned by Zovio. Gibson Dunn represented the defendants.

Original Jurisdiction noted the unpublished Feb. 20 decision.

“One common practice pointer for brief writing is not to forfeit the opportunity to use the facts section as a vehicle for subtle advocacy. But don’t go too far, lest you get benchslapped,” wrote Original Jurisdiction author David Lat in his Judicial Notice newsletter.

Zovio and Ashford University were found liable for making false and misleading statements to prospective students in violation of California’s unfair competition and false advertising laws. The appeals court reduced the award by $933,453 because the civil penalty was partly based on false advertising violations that fell outside the statute of limitations.

The appeals court’s criticism of Gibson Dunn begins at page 15.

Gibson Dunn’s factual recitation “highlights favorable testimony while ignoring or downplaying the trial court’s adverse factual findings,” the appeals court complained.

The appeals court included some examples. The brief said Ashford University sought to be a “place of opportunity” for disadvantaged students while “downplaying that the court found Ashford deceived those same students,” the appeals court said.

The brief also emphasized executives’ testimony that the role of admissions counselors was to help and educate, “ignoring that the court found defendants’ admissions counselors were sales people who were pressured to persuade prospective students to enroll,” according to the appeals court.

The appeals court noted the advice in a leading practice guide, which says the appellant’s brief “should accurately and fairly state the critical facts (including the evidence), free of bias, and likewise as to the applicable law.”

“We disapprove of the distorted narrative defendants have presented here,” the appeals court said. “And while defendants deny that they have raised a sufficiency of the evidence challenge to the trial court’s factual findings, we observe that any such challenge has also been forfeited due to their briefing violation.”

The appeals court also said the brief is “peppered with factual statements” that have no citation to the supporting record. And the brief intends to convey that Zovio suffered financial ruin after the judgment, but the assertion is based on outside materials, the appeals court said.

The appeals court said it was ignoring “unsourced factual assertions” and “citations to materials published on the internet as well as the facts they purportedly contain.”

Gibson Dunn did not immediately respond to the ABA Journal’s email request for comment.

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3. Does narrowed question in Trump immunity…

U.S. Supreme Court

Does narrowed question in Trump immunity case benefit special counsel? Some commentators think so

By Debra Cassens Weiss

February 29, 2024, 3:09 pm CST

The U.S. Supreme Court avoided former President Donald Trump’s most extreme arguments—including that he has absolute immunity from prosecution for any acts while in office—when it crafted the question presented in its grant of certiorari Wednesday in the special counsel’s case over efforts to overturn the 2020 presidential election.

This is the question presented as crafted by the Supreme Court: “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

What is the significance of the narrowed question? Some commentators think that it benefits special counsel Jack Smith.

In a social media thread on X, formerly known as Twitter, Jack Goldsmith, a professor at Harvard Law School, noted that the question focuses on official acts and presidential immunity, rather than absolute immunity.

Goldsmith sees the language as indicating that the high court might be considering a subset of official acts for which a president might get immunity. Those acts could be core functions under Article II or a subset of presidential powers. He speculates that acts carrying immunity might include pardons, firing of officials and self-defensive military action.

“But such a ruling wouldn’t come close to giving POTUS a blank check in office since most official acts would not be core Article II functions,” Goldsmith wrote.

Steve Vladeck, a professor at the University of Texas School of Law, also attributes significance to the phrasing of the question presented.

“My own view is that the [question presented] is written rather carefully to narrow exactly what the court is doing, both to cut out of the case entirely some of Trump’s more … extreme … arguments (like double jeopardy) and to also signal that the court is focused on the official acts question (strongly implying that it has no interest in recognizing any broader immunity),” Vladeck wrote in a Q&A on his One First Substack site.

Even if Trump wins on the narrowed question, there is room for Smith to go forward with the prosecution based on nonofficial acts, Vladeck wrote.

A column in the Washington Post agrees that the “official acts” language means that the Supreme Court could rule for Trump and still leave discretion for Smith to argue that trying to overthrow an election is not an official act.

In a Lawfare blog post written before the cert grant, Martin S. Lederman, a professor at the Georgetown University Law Center, elaborates on why he thinks that there is no serious argument that Trump was acting in his official capacity when he engaged in the alleged conduct.

“For starters,” Lederman wrote, “all but one of the counts of the indictment allege that Trump conspired with others to violate the law through fraudulent conduct. And, with one discrete exception, Trump’s alleged agreements to commit such fraud were with persons outside the government”—including, apparently, four lawyers.

“It’s very hard to see how Trump’s agreements with the five private parties might have been undertaken in his official capacity as president of the United States,” Lederman wrote.

Even if there was such a rare case, “under no possible understanding of a president’s proper role” would an official presidential duty include entering into an agreement to defraud the United States and obstruct its proceedings, he wrote.

Even if the Supreme Court paves the way for prosecution, the timing of its decision could be critical, according to three commentators writing at MSNBC. If the Supreme Court rules in late June, the trial might not begin until September, “making a verdict before the election difficult, if not impossible.”

The MSNBC authors are Norman Eisen, a former House Judiciary Committee impeachment counsel; Joshua Kolb, a former Senate Judiciary Committee law clerk; and Fred Wertheimer, founder and president of Democracy 21.

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3. Court scolds Weil partner for brief found…

Appellate Practice

Court scolds Weil partner for brief found to ‘incorporate by reference’ nearly 2,000 words from another document

By Debra Cassens Weiss

February 20, 2024, 1:34 pm CST

A partner with Weil, Gotshal & Manges apparently missed an opinion telling his law firm that incorporating an argument by reference can’t be used to exceed word-count limits in briefs, according to the U.S. Court of Appeals for the Federal Circuit.

The partner, Mark Perry, would have exceeded limits by more than 1,300 words if he had been allowed to “incorporate by reference” nearly 2,000 words from a prior brief in a related case, the Federal Circuit said in its Feb. 16 order, issued sua sponte.

Reuters, Law360 and IPWatchdog have coverage.

When opposing lawyers objected to the attempt to incorporate the material by reference, citing the prior case involving Weil, Perry “chose to do nothing,” the Federal Circuit said.

The better course, when it becomes apparent that a lawyer has violated a court order, would be to bring it to the court’s attention and withdraw the improper argument, the Federal Circuit said.

Instead, Perry had argued that the Federal Circuit never ruled on incorporating an argument by reference when it involves the same party’s brief in a companion appeal.

The position “is unreasonable given this court’s prior opinions,” the Federal Circuit said.

“Since appellee has made this argument, it gets this order,” the appeals court said.

Perry had argued that his intent was to “enhance efficiency,” “streamline the briefing,” and “save the time and resources of the court.” The Federal Circuit said those goals were not served.

“Requiring the court to cross-reference arguments from multiple briefs in multiple, separate cases does not increase efficiency nor does exceeding the word count. But we accept this mistake was made in good faith,” the appeals court said.

The prior case involving Weil is Microsoft Corp. v. DataTern Inc., a 2014 decision. The Federal Circuit also cited a 2023 decision, Medtronic Inc. v. Teleflex Life Sciences Ltd.

“We hoped not to have to write this order,” the appeals court said. “Rule 28 of the Federal Rules of Appellate Procedure seems clear. Microsoft seems clear. Medtronic seems clear. These cases hold it is improper to exceed the word count through incorporation by reference.”

According to coverage by IPWatchdog, Rule 28 limits most references in appellate briefs to documents that are part of the intrinsic record of the case. Parties may also adopt part of another brief by reference in appeals with multiple appellants or appellees.

Perry’s incorporation by reference was part of a footnote.

“In retrospect, it would have been better not to have included it,” he said in his supplemental brief arguing against sanctions.

The Federal Circuit did not sanction Perry but said “future litigants should appreciate” that future violations will likely result in sanctions.

The appeals court’s order was issued in in patent infringement litigation between Comcast Cable Communications and the Promptu Systems Corp., a speech-recognition technology company. Perry represents Comcast in four related appeals.

Perry and Weil did not immediately respond to an ABA Journal email requesting comment.

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3. Quinn Emanuel disclosure order highlights…

Law Firms

Quinn Emanuel disclosure order highlights relatively new product: judgment preservation insurance

By Debra Cassens Weiss

January 31, 2024, 3:39 pm CST

Quinn Emanuel Urquhart & Sullivan must disclose terms of judgment preservation insurance that it allegedly bought before distributing a $185 million fee award to partners, according to a U.S. Court of Federal Claims judge.

In a Jan. 30 opinion, U.S. Federal Claims Judge Kathryn C. Davis ordered Quinn Emanuel to disclose the policy document but denied a request for an accounting and safekeeping of the funds, report Reuters and Bloomberg Law.

A group of health insurers that objected to the legal fee had sought the information.

Davis ruled after the U.S. Court of Appeals for the Federal Circuit vacated the $185 million award because she failed to properly conduct a “lodestar cross-check” that considers hours worked, billing rates and a risk multiplier to compensate for the risk of no or reduced recovery. The appeals court said the fee award had an implicit multiplier that was “outside the mainstream” and ordered Davis to reassess the amount.

The award translated to an hourly fee of about $18,500, according to previous coverage of the case.

Bloomberg Law called judgment preservation insurance “a relatively new area of litigation finance” that is becoming more popular. Typically, it is used to preserve some portion of large awards from being overturned on appeal, but details of such polices are mostly under wraps.

A Bloomberg Law article written by an outside contributor described judgment preservation insurance, known as JPL, as “appellate risk insurance.” The insurance can be obtained by a party or a litigation funder, and it kicks in after a judgment is final with no further possibility for appeal.

“It may insure all of the judgment, or it may be targeted at a specific legal issue that is challenged on appeal, such as attorneys’ fees or statutory damages,” the contributed article reports.

Davis said she was ordering the policy disclosure in the interest of transparency. She also said the policy terms would be relevant on remand “if the policy provisions are inconsistent with the court’s objective ‘to ensure an overall fee that is fair for counsel and equitable within the class.’”

Quinn Emanuel received the $185 million fee award in its representation of two classes of health plan insurers in litigation under the Affordable Care Act. The insurers said the federal government did not abide by its promise to pay them for losses incurred for the first three years of participation in the law’s insurance marketplace. The litigation settled for $3.7 billion, and the $185 million represented 5% of the award.

The case is Health Republic Insurance Co. v. United States.

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3. Taking ‘legal long shot,’ Trump’s lawyers…

Constitutional Law

Taking ‘legal long shot,’ Trump’s lawyers point to impeachment judgment clause in immunity argument

By Debra Cassens Weiss

January 2, 2024, 2:16 pm CST

Lawyers for former President Donald Trump are taking their immunity argument to a federal appeals court after the U.S. Supreme Court on Dec. 22 rejected a request by special counsel Jack Smith to grant certiorari before judgment to quickly decide the issue.

The U.S. Court of Appeals for the District of Columbia Circuit will hear arguments in the case next week, the New York Times reports. At issue is whether Trump is immune from Smith’s election-interference prosecution because it is based on actions that Trump took while in office.

Part of the lawyers’ argument focuses on the impeachment judgment clause, which says impeached parties who are convicted in the U.S. Senate can still be criminally prosecuted, according to the New York Times.

The impeachment judgment clause reads: “Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

Trump was acquitted in his Senate impeachment trial for allegedly inciting the Jan. 6, 2021, U.S. Capitol riot.

In a “legal long shot” argument, Trump’s lawyers contend that the clause “presupposes that a president who is not convicted may not be subject to criminal prosecution,” the New York Times says.

In a “slightly narrower but still audacious argument,” the lawyers argue that a president who is acquitted by the Senate can’t be prosecuted for the acquitted conduct, the New York Times reports.

Smith argued in his brief that the impeachment judgment clause constrains sanctions available to Congress but places no limits on post-impeachment criminal prosecution.

An acquittal in an impeachment trial isn’t necessarily based on a factual conclusion that the impeached party did not commit impeachment offenses, Smith said. He pointed to statements by at least 31 of the 43 senators who voted to acquit Trump that their vote was at least partly due to the fact that Trump was already out of office, and they didn’t think that there was jurisdiction for the trial.

U.S. District Judge Tanya Chutkan of Washington, D.C., had ruled against Trump on the immunity issue Dec. 1.

“Nothing in the impeachment judgment clause prevents criminal prosecution thereafter,” she wrote.

How Appealing linked to the brief for Trump and additional coverage, while the National Law Journal covered the Supreme Court’s rejection of Smith’s petition for certiorari before judgment.

See also:

“Federal appeals court narrows federal judge’s gag order in Trump election-interference case”

“As 1 judge temporarily lifts Trump gag order, another says he’s ‘way beyond’ warning stage”

“Trump’s election-subversion co-conspirators included DOJ official, 4 other lawyers, indictment says”

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3. Was Jack Smith’s appointment unconstitutional?…

Constitutional Law

Was Jack Smith’s appointment unconstitutional? He has no more authority than Taylor Swift, amicus brief argues

By Debra Cassens Weiss

December 21, 2023, 2:21 pm CST

Special counsel Jack Smith’s appointment was unconstitutional, leaving him powerless to obtain a quick U.S. Supreme Court decision on immunity claims by former President Donald Trump, according to an amicus brief signed by former U.S. Attorney General Edwin Meese and two law professors.

“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” the Dec. 20 amicus brief argues. “Improperly appointed, he has no more authority to represent the United States in this court than Bryce Harper, Taylor Swift or Jeff Bezos.”

The law professors who co-wrote the brief with Meese are Steven G. Calabresi of the Northwestern University Pritzker School of Law and Gary S. Lawson of the Boston University School of Law.

Calabresi summarized the arguments in a post for the Volokh Conspiracy.

The brief argues that Attorney General Merrick Garland “exceeded his statutory and constitutional authority” when he appointed Smith in November 2022. Because Smith’s appointment was unconstitutional, “every action that he has taken since his appointment is now null and void,” Calabresi argued at the Volokh Conspiracy.

Smith—who was not nominated to be special counsel by President Joe Biden or confirmed by the U.S. Senate—has nationwide jurisdiction, making him more powerful that any of the 93 Senate-confirmed U.S. attorneys, Calabresi said. Federal law allows the attorney general to appoint attorneys to assist U.S. attorneys but not to replace them, he wrote.

The argument is that the appointments clause requires all federal offices “not otherwise provided for” in the Constitution to be established by law. Yet there is no statute establishing the Office of Special Counsel within the U.S. Department of Justice. Nor is there a statute allowing the attorney general to appoint an inferior officer special counsel with the powers given to Smith. And inferior officers, in any event, must be controlled by a superior officer, but Garland doesn’t have that power over Smith under DOJ regulations.

The appointments clause makes clear that the “default mode” of appointment for all officers is presidential nomination, Senate confirmation and presidential appointment, the brief says.

There is a proper way to appoint a special counsel like Smith, Calabresi said at the Volokh Conspiracy. Garland should “ask one of the very best Senate-confirmed U.S. attorneys now in office to prosecute the cases arising out of the events of Jan. 6, 2021, or the misuse of classified documents case, to be special counsel” with nationwide authority.

The attorney general could then appoint Smith to be the special counsel’s special assistant, and the Trump cases could then be “restarted from scratch” Calabresi wrote.

“We do not want future U.S. attorney generals, such as the ones Donald Trump might appoint, if he is reelected in 2024, to be able to pick any tough thug lawyer off the street and empower him in the way Attorney General Merrick Garland has empowered private citizen Jack Smith,” Calabresi wrote. “Think of what that would have led to during the McCarthy era.”