It would be naive to think that juries have the final say. Win or lose, an appeal to a higher court is in the back of every trial lawyer’s mind. If the issue on appeal is a close one, the appellate court grants the attorneys a hearing to argue their case before a panel of appellate judges. This is known as oral argument. Whether you won or lost at trial, the appellate oral argument is the ultimate turning point that will decide your fate.
I recently interviewed three brilliant appellate lawyers who share their insights and strategies that make their oral arguments successful (Turning Points at Trial). Let me share with you my favorite tip from Bryan Stevenson who is internationally known for his advocacy of death row inmates, juveniles in prison, and civil rights. He shared with me the strategies he used in two of his Supreme Court arguments.
Do you know what Stevenson takes to the podium? It is a legal pad. But it is not full of notes. While most lawyers take a notebook full of cases and record transcripts, Stevenson takes a blank legal pad so that he can write down a question from a justice if the pace gets too fast so that he makes sure that he answers it. He explains as follows.
An unforgiveable mistake lawyers make at oral argument is that they fail to listen. Stevenson advises, “you can go in to an appellate court and give a beautiful speech about why you think you win,” instead of listening to the questions the court needs answered. If what the court is concerned about is some really peculiar, esoteric question about something procedural, you’re not going to get their vote unless you resolve that question.
While the issues before a lower appellate court are simpler, at the Supreme Court the justices are “thinking about 100 things that have nothing to do with your case. They’re thinking about the precedential implications. They’re thinking about things like, ‘How does this position me on other issues that I care deeply about, like state autonomy. Like who interprets the Constitution?’”
“There are all these other issues that they’re thinking through that have nothing to do with what the right outcome is in your case, but the outcome in your case is going to be influenced by those concerns.” No matter where you give an oral argument, listening is paramount.