Monday, June 14, 2010

Excellent Article by Howard J. Bashman, Esq. on Preparing to Argue in the Appellate Courts

Below is a reprint of an excellent article on preparing for argument in the appellate courts by Attorney Howard J. Bashman in the June 14, 2010 edition of The Legal Intelligencer:

Preparing Effective Oral Arguments for Appellate Courts

Howard J. Bashman
The Legal Intelligencer
June 14, 2010

Upon Further Review

The Legal Intelligencer recently hosted a Continuing Legal Education course titled "Winning Litigation Strategies" at which I was fortunate to have been one of the speakers in that program's appellate litigation segment. The subject of my remarks was preparing for an appellate oral argument.

Typically, at the outset of my preparations to argue an appeal, I will re-read the parties' appellate briefs and the trial court's opinion. I will also again familiarize myself with the relevant case law and update my legal research to find any newly issued cases that were not cited in the briefs.

If the case involves more than one or two issues, it is usually a good idea to consider what issues should be the main focus of the oral argument and what issues can be omitted. Of course, the judges can ask questions about any issues in the case, and opposing counsel may decide to focus on additional issues, so a well-prepared advocate will be ready to address any of the issues involved, even those that were not going to be the central focus of his or her presentation.

One of the most important aspects of preparing for oral argument involves thinking about what are the weaknesses and vulnerabilities in your client's case, what sort of challenging questions the appellate judges could ask on those topics, and how best to respond directly to those questions. In addition, it is important to anticipate hypothetical questions from the judges, who are seeking to understand the scope or limits to the legal principles that you are asking the court to adopt or apply.

Appellate courts are in the business of announcing legal principles and deciding the limits of when and how those principles will apply. In other words, if the appellate court is considering whether to announce a rule of law in your case, the judges will legitimately be interested in anticipating if and how that rule of law would apply to other cases involving different facts. This is why appellate advocates must be prepared to respond to hypothetical questions at oral argument instead of simply seeking to evade them as not involving the facts of this particular case.

In reviewing the relevant case law, it is important to focus on whether those decisions are directly binding on the judges who will decide the appeal or are merely persuasive. For example, three-judge 3rd Circuit panels are bound by the rulings of other three-judge 3rd Circuit panels, but they will not be bound by the decisions of other federal appellate courts. Similarly, while a ruling of the Supreme Court of Pennsylvania will bind both the Commonwealth Court and the Superior Court, a ruling of the Commonwealth Court will not bind the Superior Court, nor will a Superior Court ruling bind the Commonwealth Court.

If you are arguing your appeal before a court where the identity of the judges who will be hearing the oral argument is disclosed in advance, it is useful to research those judges' backgrounds and also to see whether any of them wrote the key cases on which the parties are relying. In addition, if you are intending to invoke the names of any of the judges at oral argument, it is useful to make sure in advance that you know the correct pronunciation.

If you have never argued before the particular court in which your appeal is pending, it is useful to attend an earlier argument session or listen to the court's oral arguments that are available over the Internet. The 3rd U.S. Circuit Court of Appeals posts its oral argument recordings online, but Pennsylvania's state appellate courts do not. Indeed, in Pennsylvania's state appellate courts, the oral arguments are not officially recorded or transcribed, so whatever happens at oral argument exists thereafter only in the memories of the participants and observers.

Another thing that is useful to know in advance is whether and how the time remaining at oral argument is displayed to the advocate. At the 3rd Circuit, color-coded lights along with a digital clock allow the advocate to see precisely how much argument time remains. By contrast, at the Pennsylvania Superior Court, the presiding judge maintains a device that will beep when the time for argument has expired, but the advocate cannot see from the podium exactly how much time remains. In that latter situation, the advocate should be prepared to monitor his or her own argument time simply to ensure that the points that need to be made at argument are emphasized before all time has expired.

Inexperienced appellate advocates might view appellate oral argument as the perfect opportunity to deliver prepared remarks to the appellate judges, perhaps in the impassioned nature of a closing argument to the jury at trial, and thereby attempt to evade or ignore the questions posed from the bench. But, in actuality, there is no surer way to incur the wrath of the appellate court.

Questions from the bench should and indeed must be answered directly and promptly, instead of seeking to evade them or postpone them until later. Not every question is a hand-grenade; sometimes, appellate judges toss a lifeline. Be prepared to succinctly state the precise holding that you are asking the appellate court to reach. I do not mean that you should merely be able to state the outcome that you are seeking. Rather, you must be capable of stating the principle of law that will allow the court to reach that outcome.

From time to time judges will ask, "What's your best case for that proposition?" or, "Where can we find that in the record on appeal?" so you should also know at least a case or two that supports what you are arguing and where in the appellate record the key documents or testimony can be found. If you receive a question whose answer you simply do not know, it is better to honestly report that you don't know instead of giving a response that could inflict far greater harm on your case.

The best appellate oral arguments are the ones that are, in essence, a conversation between the judges and the lawyer. It is better to elicit and attempt to address whatever concerns the judges may have about the merits of your case while you still have the opportunity to do so than to cut off all questioning because you are speaking too quickly, too loudly, or too softly. It is also possible to convince the appellate court that the trial judge made a mistake or that the opposing party acted badly without having to be impolite at oral argument toward the trial judge or opposing counsel.

My final thought, for now, on the subject of delivering oral argument on appeal is that lawyers will become better at, and more confident in, delivering oral argument on appeal through experience. Lawyers who are well-prepared for appellate oral arguments, and who have thought about how to advance their client's case while dealing with any weaknesses and vulnerabilities in the case, will not only obtain the best results possible, but they may even actually enjoy their time at the lectern. •

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached by telephone at 215-830-1458 and via e-mail at You can access his appellate Web log at

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