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.

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].

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.”

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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Judiciary

Does judge’s reference to ‘little Chinese woman’ show bias? Appellate concurrence sees ‘pure stereotyping’

By Debra Cassens Weiss

December 19, 2024, 1:42 pm CST

A California judge who said he was almost amused when a “little Chinese woman” stared him down did not rule against her based on ethnic bias, but his comment was “pure stereotyping,” according to two concurring judges in an appellate opinion.

The California Courts of Appeal’s Second Appellate District certified the Nov. 27 opinion for publication Dec. 17 after receiving requests that it do so from the California Civility Task Force and the Orange County Asian American Bar Association, Law360 reports. Published opinions can be cited as precedent.

The case involved a dispute between the plaintiff, Natalie Lloyd Merrick, and her mother over funds from the sale of a condo in China. Merrick was awarded more than $242,000 from the sale, leading to a dispute over the amount of prejudgment interest.

Judge Randolph M. Hammock of Los Angeles County, California, ruled against Merrick on the interest issue in June 2022 and awarded mandatory attorney fees of about $2,000 to the mother.

During the final hearing, Hammock made these comments: “I already rejected those arguments. OK. I know your client was not happy with my ruling [at a previous hearing]. I mean, she was there, you know, mad dogging me, which didn’t bother me at all. It was almost amusing to see this little Chinese woman stare me down because she didn’t like the ruling. But again, it’s just business. I didn’t take it personally.”

The appeals court opinion by Judge Elizabeth A. Grimes said there is no reason to believe that Hammock harbored any bias against Merrick. She added, however, that “unnecessary references to a litigant’s ethnicity and gender are certainly to be avoided.”

In a concurring opinion, Judge Maria E. Stratton agreed that Hammock’s “gratuitous comments” did not influence his ruling. His findings were supported by evidence, and his decision was based on a realistic evaluation of facts. But his comments “cannot pass without censure,” she said in the concurrence joined by Judge Victor Viramontes.

Stratton asserted that Hammock’s “patronizing description” of Merrick violated judicial canons requiring judges to be dignified and courteous, to act in a manner that promotes confidence in the judiciary, and to refrain from conduct that would reasonably be perceived as biased.

“Beyond being generally demeaning,” Stratton wrote, “the trial judge’s fatuous comment traded on racist and sexist tropes.” Hammock found it almost amusing that Merrick, “a little Chinese woman,” stared him down, she wrote.

“Implicit in the court’s identification of these characteristics as what made Merrick’s conduct funny was the concept that her behavior was incongruous; that is, someone like Merrick was neither expected nor supposed to act in a certain manner. This is pure stereotyping. How should a ‘little Chinese woman’ have acted? Like the stereotype of an Asian woman—demure, meek, eager to please, deferential to men?”

Stratton acknowledged that Hammock’s comment may have been “unwitting” and said such remarks implicate implicit bias, which can influence behaviors without awareness.

Stratton added that “being mindful of the stereotypes we all carry” is part of a judge’s job.

“Reining in impulses, our inner autopilot, to make random comments that personally denigrate a litigant is also part of our job,” she wrote.

Hammock told the ABA Journal that he couldn’t comment because there is no final judgment yet.

Hammock apologized for his conduct to his presiding judge after the appellate opinion was issued.

“Suffice it to state, I am extremely embarrassed and regretful of those comments,” he said in a letter self-reporting his conduct to the judge.

Hammock’s letter said he accepts that his comments violated judicial canons.

“I have certainly thought long and hard as to my actions in this regard, and moreover, I have considered what I need to do myself in order to take the appropriate ‘corrective actions’ needed to ensure that such violations do not occur again by me,” Hammock wrote.

The first step, Hammock wrote, was to self-report. He has also read publications on implicit bias mentioned in the concurrence and plans to take the next judicial course offered on the subject.

“You can rest assured that I will strive to do my best to learn a serious lesson from this incident and to act accordingly,” Hammock wrote. “I must and will do better.”

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U.S. Supreme Court

Supreme Court orders reconsideration of appellate decision on youths carrying guns

By Debra Cassens Weiss

October 15, 2024, 2:46 pm CDT

The U.S. Supreme Court on Tuesday told a federal appeals court to reconsider its decision that blocked a Pennsylvania ban on youths openly carrying guns during a state of emergency.

The high court vacated the decision by the 3rd U.S. Circuit Court of Appeals at Philadelphia and directed it to reconsider in light of U.S. v. Rahimi.

In the June Rahimi decision, the Supreme Court upheld a federal ban on gun possession by those who are subject to domestic-violence restraining orders.

The 3rd Circuit ruled in January that youths who are 18 to 20 years old are among the people protected by the Second Amendment, and they can’t be barred from openly carrying guns during a state of emergency.

Pennsylvania requires people carrying concealed firearms to be at least 21 years old and to have a license. Those who want to openly carry guns are generally allowed to do so. But in states of emergency, they must have a license, or they must qualify under other exceptions. The practical effect of those laws is to ban those who are 18 to 20 years old from openly carrying guns during states of emergency.

When the suit was filed, Pennsylvania had been in a state of emergency for nearly three years because of the COVID-19 pandemic, the opioid addiction crisis and Hurricane Ida.

CNN and Bloomberg Law have coverage of the Supreme Court’s order in the case, Paris v. Lara.

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The Modern Law Library

Legal thriller author David Ellis’ day job? Appellate court justice

By Lee Rawles

August 29, 2024, 8:41 am CDT

Justice David W. Ellis has served on the Illinois Appellate Court for the 1st District for nearly 10 years. But readers may know him better as author David Ellis, bestselling writer of more than a dozen legal thrillers.

Ellis had enjoyed creative writing as a youth, he tells the ABA Journal’s Lee Rawles in this episode of The Modern Law Library podcast.

But during his college and law school years, he was focused solely on his legal career path. It wasn’t until he had been in practice for a few years that this changed. During a vacation at the beach, he suddenly decided that he was going to write a novel—and once that goal was set, he worked relentlessly toward it. And in 2002, he won a prestigious Edgar Award from the Mystery Writers of America for that first novel, Line of Vision.

Both branches of Ellis’ career have seen tremendous returns. He made national news in 2009 as the prosecutor of the impeachment of then-Illinois Gov. Rod Blagojevich before the state senate. He was the youngest-serving justice in 2014 when he joined the Illinois Appellate Court for the 1st District, which serves Chicago and Cook County. And along the way, he published 11 novels, including the four-book Jason Kolarich series. He was a finalist for the ABA Journal-sponsored Harper Lee Prize for Legal Fiction in 2012 and 2013. He has also co-written nine books with James Patterson, the latest of which (Lies He Told Me) will be released in September.

In this episode, Ellis and Rawles discuss his July release, The Best Lies. The germ of an idea that became The Best Lies started off with the notion of a main character who was a diagnosed pathological liar.

When the book opens, Leo Balanoff, a criminal defense attorney in Chicago, has just been arrested for murder. Police have collected DNA and fingerprints at the scene that are a match for a college-era bar fight that Leo was charged for, and the victim had an ugly history with one of Leo’s clients.

Over the course of The Best Lies, twists and turns across multiple timelines and through multiple points of view begin to reveal what really happened. Ellis weaves a tale combining corporate espionage, violin concertos, police corruption and the Estonian mob.

Ellis also discusses his writing process, his 3:30 a.m. wake-up time, the similarities in his creative and legal writing, and how his judicial ethics concerns sometimes impact his editorial decisions.

In This Podcast:

David W. Ellis. (Photo by Kevin Kuster)

David W. Ellis is a judge and a No. 1 New York Times-bestselling, Edgar Award-winning author of 11 novels of crime fiction, as well as nine books co-authored with James Patterson. In December 2014, Ellis was sworn in as the youngest-serving justice of the Illinois Appellate Court for the 1st District. Ellis lives outside Chicago with his wife and three children.