Last August, we discussed recent procedural changes surrounding oral argument in the Sixth Circuit. In an effort to shed more light on the topic of oral argument in the Sixth Circuit in general, we recently observed three days of oral argument. We attended 18 oral arguments presented before various panels that, taken together, were composed of 7 Sixth Circuit judges and 2 visiting district judges.
After observing the Court over this three-day period, we have compiled various tips for what to expect during oral argument at the Sixth Circuit:
Anticipate a “hot bench”. Each Circuit has a unique style and frequency of questioning parties. Consistent with our own experiences, judges at the Sixth Circuit did not listen passively to oral argument. The panels we observed asked an average of 37 questions in each case. Both appellants and appellees were actively engaged in questioning throughout oral argument. Judges posed an average of 18 questions towards the appellant and directed an average of 14 questions towards the appellee. Appellees should therefore be just as prepared for questioning as appellants. We also found that during rebuttal (which lasted 2-5 minutes), appellants were asked an average of 5 questions. The importance and frequency of these questions demonstrated the importance of the rebuttal for appellants.
Know your audience. In an effort to ingratiate himself with the panel, one attorney from Michigan began his oral argument by remarking that unlike most Michigan attorneys, he enjoys visiting Ohio. Unfortunately for him, only one of the judges was from Ohio (and one was from Michigan) – and the panel obviously did not think much of his comments. The attorney lost any momentum he hoped to gain before beginning his argument. Even if an attorney does not know the relevant cases authored by each judge, he should at least look at the oral argument calendar (which is posted weeks ahead of the argument) to see who will be on the panel.
Know your caselaw. Oral argument can make or break a close case, and so important to come to court well-prepared. In some arguments we observed, attorneys were unaware of recent Sixth Circuit cases and were unable to respond to judges’ questions about their impact on the appeal. The judges also became frustrated when attorneys attempted to bolster their arguments with irrelevant cases. One judge warned an attorney that his argument’s “allegations” needed to be replaced with “real facts.” Though this preparation should be obvious, a surprising proportion of attorneys arrived at court ill-prepared for questions on important facts and cases.
In the upcoming months, we will be posting additional entries addressing the practice of oral argument in the Sixth Circuit. These posts will identify matters such as the various ways in which judges use questioning during oral argument, and how the manner in which judges question attorneys may reveal the eventual outcome of the case.
Thanks again goes to Lauren Henderson, a law clerk at Squire Sanders, for her work in researching and writing this post.