New England Biz Law Update
Once an appeal has been fully briefed and the oral argument has been scheduled, it is time to think about how to get ready for the argument.
Thorough preparation for the argument should go far beyond just re-reading the briefs and making an outline. Here is a checklist of steps to ensure the depth and breadth of preparation required to make the most compelling presentation.
1. Review the briefs for what’s in them — and what’s not.
Often, a first step in preparation is re-reading the briefs, particularly since significant time may have passed between the filing of briefs and the argument date.
It’s important not just to re-read the briefs but to take a deep dive into them. Ask: What arguments on your side seem strongest and therefore should be highlighted at argument? Which seem weaker and might attract questions or require additional explanation?
In opposing counsel’s briefing, where are the weaknesses that can be exploited at argument, and which arguments are stronger and will require a compelling and pointed response? Which arguments were made in the final brief that have not been responded to in writing?
Take detailed notes as you review the briefs, and use them to develop themes and an outline for argument.
2. Research the panel.
Once you know which judges will make up your panel, do some research to help you get a window into how they may view your case and arguments.
By whom were they appointed and when? What professional affiliations do they have? What experience do they have on the current court, or on previous courts? What was their practice area before they joined the bench?
Gather intel from colleagues who have appeared before these judges about whether they are likely to arrive prepared, whether they typically ask a lot of questions, and anything else notable about what to expect in appearing before them.
3. Read your judges’ other opinions.
Beyond researching the panel’s biographies, consider what other opinions they have drafted, joined in or dissented from that deal with issues relevant to your case. Those prior opinions may offer hints as to how they may view your case or arguments.
Consider whether there is language or a theme from a prior opinion of one or more of the judges that might make sense to highlight at argument.
4. Update your research.
Make sure that you update the legal research before argument, especially since considerable time may have passed between the filing of briefs and the argument date.
Check to see if any new decisions have been issued that affect your argument. Make sure the cases you rely on are still good law, and check to see if there are any changes to the status of opposing counsel’s key cases.
In the event of a major development, you should consider whether to file a notice of supplemental authority prior to argument to highlight the issue.
5. Read the key cases and have them at your fingertips.
Take the time to re-read the key cases cited in your briefs and the opposing briefs. Familiarize yourself with the key facts, holdings and procedural history, in case the panel asks a targeted question.
Take advantage of the chance to read the cases with a fresh eye, looking for helpful language to highlight at argument or problematic language that might come up in the opposing argument or in a question from the panel.
Organize, highlight and tab the most essential cases into a binder that you can quickly access at the argument, if needed.
Consider preparing short squibs of each key case for easy reference during argument. There is rarely time during argument to search through cases for a specific point you want to make.
6. Prepare a longer-form outline.
It is helpful to prepare an outline of the key points that you would make if you faced a completely cold bench and had a full 15 minutes or more to speak continuously. That’s unlikely to happen, but if it does, you will be prepared.
Further, the process of drafting a more complete outline will help refine your thinking about your arguments and the order in which you hope to make them.
7. Prepare a list of “must-make points.”
The reality is that, in most cases, you will spend most of your allotted time answering questions from the judges. Given that, prepare a one-page bullet-point list of your “must-make points.” That way, as your time winds down, you can glance at it quickly to ensure you have covered all your key points during your presentation.
The process of thinking through which points are the most salient and crystallizing them into a few words will help clarify your thinking long before you face the panel.
8. Anticipate the hardest questions.
Perhaps the most crucial preparation task is to anticipate the hardest questions you are likely to face from the panel and how you will respond.
What points were the most difficult to wrestle with in the briefing? These may draw increased scrutiny from the panel.
What are your opponent’s strongest arguments, and how do you respond? Putting together an outline of those tough questions and the most effective responses will ensure that you give those tricky issues appropriate time and attention well before you are on your feet at argument.
Solicit input from your whole appellate team as to what tough questions to expect. Consider holding a “moot court” with colleagues to practice answering the most difficult questions on your feet.
9. Get to know your clerk.
Reach out in advance to the clerk, who holds a wealth of practical information.
What forms are required to indicate which attorney will argue? How long will each side have for argument?
If you are the appellant, can you reserve rebuttal time? If so, decide in advance whether to reserve time and, if so, how much.
How does the court’s timing system work? Will arguments be recorded, and if so, by audio or video? And when will the recording be posted online and/or a transcript made available?
How can you reach the clerk in event of a travel, weather or other emergency? What sort of check-in is required on the day of argument and at what time?
If you have never been to the courtroom where you will be arguing, plan to arrive a little early to see the layout and decide how that may impact which documents you bring to the podium and which you leave behind at counsel table.
10. Put yourself in the judges’ shoes.
One of the challenges of preparing for argument is to try to see your case not from your own, familiar position as an advocate but from the point of view of the judges.
The judges may have procedural concerns or questions outside those addressed by the parties in the briefs. They may have concerns about the precedent they will be setting in their opinion, perhaps well outside of the specific interests of the parties in your particular case. They may have concerns about the policy impact of a given ruling.
Taking the time to think through the case from the perspective of judges can help you develop thoughtful answers to their concerns well before you are in the hot seat.
Dawn R. Solowey is senior counsel at Seyfarth Shaw in Boston. She gratefully acknowledges the help of Richard Alfred, a partner at Seyfarth, in developing the above best practices.
