We recently sat down with Pierre Bergeron and Phil Calabrese to get their perspective on oral arguments.
What is your view on the current importance of oral arguments?
Pierre: For the average appeal, oral arguments are less important today than they used to be. And you see courts cutting back on the number of oral arguments in recognition of that fact, instead relying on the briefs. But the flipside of courts cutting back on the number of oral arguments is that when you are scheduled for oral argument it suggests some significance. So you could also view oral arguments today as being more important than ever because if the court schedules your case for argument then it has probably decided that something in the oral argument could help its decision.
Phil: Oral argument is important because it is the only chance that parties get to interact with the court and speak directly to the court’s questions or concerns. From the court’s perspective, there are many cases where oral argument is simply not needed to reach a determination, and I think that this has led to a de-emphasis on oral argument in general and a reduction in the number or oral arguments that are scheduled. But when oral arguments are scheduled they are important for the parties.
How should the briefs and the oral argument fit together?
Pierre: I think that it is a mistake to hold anything back from your briefs for use at oral argument; the briefs should be a comprehensive representation of your position. But there is generally a time lag between briefing and oral argument, which gives advocates the opportunity to look at their position with fresh eyes. It is important to take a step back and focus on the things that should be brought out at oral argument as well as strengthening areas of weakness that you will have to address.
Phil: Cases continue to gel over time and oral arguments provide an opportunity to look at the case from a fresh perspective, but parties are always tethered to what came before in the record and the briefs. So the briefs and the oral argument need to work hand in hand. The briefs are where the court does the meat of its work and the parties need to be comprehensive in the arguments that they make there. Oral argument compliments the briefs by giving parties an opportunity to sharpen the court’s focus on the crux of the issues.
How do you prepare for oral arguments?
Pierre: I start by re-reading the briefs as well as the key cases and dig back into the record to make sure that I have the basics mastered and to get a sense of how the argument should go. Then I focus on the weaknesses in the argument as well as the areas that are most likely to prompt questions. I will generally do a moot argument the week before the official argument so that I have time to reflect on the dialogue and adapt my approach if necessary.
Phil: My specific preparation depends on whether I represent the appellant or the appellee but I generally prepare opening remarks that are designed to be short and highlight the core issues for decision. I anticipate questions that the court will ask and think through the best way to answer them, including practicing specific wording and responses. I review the record and the case law and make sure that I have key citations at hand during the argument to facilitate the dialogue with the court. Finally, I develop a closing point that I think cuts to the heart of the dispute that I want to leave the court with before the panel conferences to decide the case. And I try to steer the dialogue towards that ultimate point because it is what I want the court to take away. But the key for all of the above is diligent preparation.
What characteristics do you think make for good appellate advocacy?
Pierre: Preparation is critical because it is important to give candid and helpful answers to the court rather than ducking questions. And mastery of the record as well as the law is what makes that type of dialogue possible. Advocates sometimes dread getting tough questions from the bench because they may derail the advocate’s planned remarks or may force the advocate to deal with what is a genuinely difficult question of law. But questions from the bench are also a window into the thinking of the judges and give you an opportunity to meet them where they are and help them wrestle though difficult questions. In my experience judges are well prepared for oral arguments, especially on the Sixth Circuit. So advocates should expect an active bench and embrace it.
Phil: Candor and directness. I have never had a case where the difficult issues for our side did not become front and center. It is important to take these issues head on and not dance around questions or paper over weaknesses. Advocates are there to answer the court’s questions and bring the court over to their position. And it is very difficult, if not impossible, to bring the court over to your position if you do not directly deal with its questions.