I was listening to Fourth Circuit arguments recently. Two experienced appellate lawyers were arguing. Both were smart lawyers, were familiar with the Court, and were very prepared. But one lawyer strayed onto the side of “too casual” and it inspired this blog post.

Takeaways

• The Supreme Court of Virginia hasn’t issued any new opinions in the past few weeks.
• There are unwritten rules for oral argument. Read on for a few.

Rules of the Game

Appellate lawyers love rules (shocker). Here are some unofficial rules of oral argument.

1. The Court is funny. You are not funny.

Have you ever heard the expression: “The Court is funny. You are not funny”? If not, it’s never too late to learn something new. Judges sometimes make jokes. Sometimes the judges are genuinely funny and other times we all politely laugh to acknowledge the effort, if nothing else 😉 But we, as lawyers, should not make jokes in oral argument. Oral argument is too formal and it is too serious for that.

I am a goofy nerd. I like jokes. Occasionally I am funny (sometimes intentionally). But I’m never attempting to be funny at oral argument because it’s not appropriate.

In the oral argument I recently listened to, one of the lawyers was engaged in a very serious dialogue with a judge. To lighten the mood, one of the lawyers attempted to make a joke. A few people laughed uncomfortably. Not good.

Let us learn from the mistakes of others! 

2. Oral argument is formal.

Please don’t respond to a judge’s question with “yeah.” A lawyer once did this in response to a question and it was not acceptable. I happen to know this lawyer and am certain it was unintentional. Sometimes in a panic, even good lawyers slip up. I also am certain someone talked to the lawyer about it afterwards.

We can be conversational without being casual. Having a thoughtful dialogue is, in fact, the entire point of oral argument.

3. Tone and volume matter.

You know those signs at amusement parks with obvious notices, like “Don’t do the [insert obviously dangerous thing]?” I have two notes here. The first is that a lawyer likely told the amusement park to post those annoying signs. The second is that the lawyer told them to post the signs because of an incident that actually happened. Similarly, at first glance, telling you that tone is incredibly important at oral argument might seem…unnecessary. Folks, let me tell ya, it apparently needs to be said. At argument, I heard one lawyer raise his voice to the judge. The judge took it in stride and the two debated an issue for quite some time. But I can promise you that everyone listening was appalled. There is no room for yelling at oral argument.  

Similarly, don’t be rude or short. I listened to a different lawyer respond well to tough questions in substance. The problem was in their tone. For instance, at one point they said “no” in a terse, snippy way. That doesn’t earn you any points. If this lawyer had simply said the exact same words but said them in a professional manner (and maybe later had followed up their “no” with a “…your honor”), it would have gone better.

A hot bench is exciting. The minutes fly by. If a judge is engaging with you during oral argument, you should respond with the best arguments you can make. But do it with the knowledge that the judges just want to get to the result they think is right. No one’s intentions are bad. Even if we disagree, we need to disagree appropriately.

Think about oral argument as a conversation with really smart judges. Don’t respond in a hostile manner. Stand your ground respectfully. Do you think someone yelling at you in an inappropriate setting is persuasive? I sure don’t. Yelling is never the answer. And I wish that this didn’t need to be said.

4. For heaven’s sake, answer the hypothetical.

That’s it. That’s the rule.

We know your case is *different.* That’s what makes it hypothetical. Just answer the question.

May it please future courts

Someone is going to email me and they’re going to say, “Rachel, you don’t know what you’re talking about. I’ve had judges yell at me and be rude to me and I needed to yell to defend my client’s interest.” Sorry, nope.  A different lawyer is going to tell me that they once made a really good joke at the lecturn. Still not appropriate. When you are Monica Monday or Ginny Theisen, you can make a joke. Otherwise, nope. 

Someone else is going to say that none of this matters because cases are generally decided on the briefs. While that is largely true, that isn’t always accurate for close cases. I’m certain oral argument changed the outcome in a handful of my appeals. And even if you aren’t going to win, perhaps you can at least convince a court to change their rationale or not to go further and decide X or Y.  So, no, I won’t agree with you, random internet lawyers. Oral argument does matter in hard cases. And even when you’re arguing the rest, you are building your reputation. Do you want to be a lawyer the judges are excited to have coming to argue a hard case… or do you want to be the lawyer who inspires a blog post about what not to do?

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(In the meantime, please feel free to email me what unwritten rules I’ve forgotten: rachelyates@yatesappeals.com).