Chief justice Rabner was the guest speaker at last night’s NJSBA Appellate Practice Committee meeting. He was aware that Judge Vernoia spoke at a previous meeting about appellate briefing, as reported here. So he chose to focus his remarks on oral argument in the Supreme Court. Though some of his points were specific to the Supreme Court, others apply to appellate oral arguments generally. Here are some of the highlights of his lengthy, well-received remarks, after which he took questions.
The Chief Justice began by answering the question that all appellate advocates, and their clients, ask: “Does oral argument matter?” His answer was “most definitely, yes.” He has seen Justices, including himself, begin oral argument with one view of the appeal, but end it with a different view.
Chief Justice Rabner divided his talk into two main sections: preparing for oral argument and presenting it. Unsurprisingly, he started by emphasizing that there is no substitute for preparation and a thorough knowledge of the facts, the law, and the record.
Two key questions should guide an advocate’s preparation process, he said. The first is “Why did the Court take this case?” (assuming as is almost always the case, that the matter is before the Court on certification, as opposed to being an appeal as of right). The Court often takes a case up for reasons that go beyond the particular case. Divining those reasons will help an advocate pitch his or her argument toward helping the Court address those reasons, though winning the particular case for the client remains counsel’s primary goal.
The second question, Chief Justice Rabner said, is “What is the rule of law that you propose for this and future cases?” He said that that is the question that the Court most often asks at oral arguments. Honing a good answer to that question in advance will greatly benefit arguing counsel.
The Chief Justice described oral argument as a series of links in a chain that, due to interruptions and questions from the Court, may need to be re-arranged on the fly. Counsel should order them in the best possible way in preparing for argument, with the strongest point first. Chief Justice Rabner also suggested thinking about what concessions counsel might make if the argument takes a turn for the worst. Again, planning that in advance, rather than reacting in the moment, is key.
A moot court before the argument is a good idea, the Chief Justice said. If that is not feasible, next best might be watching an archived webcast of a Supreme Court argument in a case raising similar issues.
Finally, the Chief Justice suggested writing brief notes on an index card or the like about 3-5 key points that counsel wishes to make at oral argument. That will help avoid, or at least reduce, post-argument remorse about what counsel did not say.
Turning to oral argument, Chief Justice Rabner noted that, in the Supreme Court, counsel have the option of a five-minute, uninterrupted opening statement. He firmly advocated taking that option and using some or all of that time.
But don’t waste that opportunity by using it to recap the facts or the procedural history, which the Court knows, by quoting Shakespeare, or by giving what you think is a dazzling oration. The opening is the time when you have the Justices’ maximum attention. Offer a crisp outline, mixing in a few key facts, of the points you intend to develop as the argument proceeds, like a road map of what you hope to do, to help the Justices see the structure of what you will be presenting.
The Chief Justice suggested that, in addition to notes, counsel should have at the podium a key document (say, in a contract case), the exact language of a statute or regulation (if one is central to the appeal), or the like. There’s no reason to be like a tightrope walker without a net regarding things that are critical to the appeal and likely to be asked about.
Some of Chief Justice Rabner’s oral argument tips are familiar, or even obvious, but still important to hear: make eye contact with the Justices, speak clearly, and loudly enough, don’t attack your adversary or judges below, have a conversation with the Court.
The Chief Justice was especially emphatic about some points: don’t read your argument. It comes out sounding unnatural, and it’s hard to listen to. If you say a case is simple, don’t use opaque language (he noted that two recent arguments featured the phrase “pellucidly clear,” an example of what not to say). Most of all, the Chief Justice said, rather than adopting someone else’s style, “be yourself,” though he hastened to add, smilingly, “unless you’re a jerk.”
Here was Chief Justice Rabner’s advice about questions: answer them, don’t argue with them. Don’t overanalyze the questions; a friendly question may be just that. Some questions may be the Justices speaking to each other, since they don’t caucus about cases before argument, unlike the Appellate Division. If that is what is happening, an advocate can helpfully try to guide that discussion in favor of his or her side in answering the question.
As argument proceeds, keep on moving from one of your pre-planned “links” to the next, in whatever order you must. Make the concessions you’ve prepared if it’s necessary to do so. And when the argument is near its end, look at your note card to be sure you’ve gotten to your few key points. Even when an advocate is asked whether s/he has any other points to make, the Court will listen to one last fairly short pitch.
Rebuttal, the Chief Justice said, is “an art: get in, make your point, and get out.” Don’t take more than 2-3 minutes and, again, don’t indulge in oratory or Shakespearean references (someone must have quoted Shakespeare, to no advantage). Consider conveying a powerful message by confidently waiving rebuttal, perhaps saying that nothing said by the respondent calls for anything more.
Chief Justice Rabner’s final point offered the long view: even if you lose your case before the Court, a well-presented, respectful argument will help the Justices remember you favorably when you next appear, and can enhance your reputation. A wise observation for a situation– oral argument– where someone always loses.