UPDATE
Appellate Briefs
AUGUST / SEPTEMBER 2001
VOLUME 5 / NUMBER 3
One Appeal, Three Arguments
By Paul Gonson
Every appellate lawyer makes three oral arguments in
each case. First, he makes the argument he intends to
make; second, he makes the argument he actually
makes; and third, as he leaves the courtroom, he makes
the argument that he wished he had made. This happens
in every case. With careful preparation, the spread
between these three arguments can be narrowed.1
1. The argument that you intend to make. Start early
to develop a theme for your argument. It will percolate
in the innermost recesses of your head. If you wake up
at 3:00 a.m. with a great idea for your argument, tiptoe
out of bed so as not to wake your spouse, go downstairs,
turn on the light and write it down. Remember the
tragic story of the author who was suffering from a
severe case of writer’s block. While walking on the
beach one morning, there appeared in his mind in a
sudden flash of insight the entire plot of a wonderful
novel, complete with the development of complex
characters. Being devout, he knelt to thank the Lord.
When he arose, he had forgotten the entire plot. The
moral is: always write it down first, and give thanks
second.
Talk about your upcoming oral argument to anyone who
will listen, but especially intelligent non-lawyers. Take
such a good friend to lunch. Surely, you will have to
condense your 50-page brief to a short, coherent, nontechnical summary. This is a good exercise. Listen
carefully to your friend’s comments and take them to
heart.
Moot Court. Always have a moot court, perhaps two.
Of course, your colleagues who worked on the brief
with you should participate. In addition, ask other
lawyers who are familiar with the area of law, but who
did not work on the case, to participate. Ask them to
read the briefs in advance. Go through your oral
argument once, without interruption. Does it have a
coherent theme? Time it. Some lawyers tape or even
videotape their moot court. Paraphrasing the written
arguments in the brief is not helpful. Phrasing which
may read well in written form might sound awkward in
spoken form, where sentences should be shorter and
much more to the point.
Start your argument a second time. Participants should
now be encouraged to ask many questions, both onpoint and otherwise, to give you a sense of the questions
that the panel of judges might ask. This is the most
important part of your moot court. You know that you
will never get to deliver the argument that you gave
during the first go-round; it is much more likely that
your argument will be interrupted by questions. To the
extent that you can anticipate them and be prepared to
respond, you will make a better actual argument.
2. The argument that you actually make. In your
oral argument, you are trying to persuade other human
beings, the judges who comprise the panel. You must
convey to them the fairness, the justice of your position,
and why the public interest supports it. You will be
Mr. Gonson served as solicitor of the U.S. Securities and Exchange Commission for nearly 20 years and, in that
role, was the Commission’s chief appellate lawyer. He has argued many appeals in the U.S. Supreme Court and
in every federal circuit. Mr. Gonson is of counsel to K&L’s Washington, D.C., office.
1
“He” is intended to refer to both genders. It avoids the awkward “he or she” or, worse, “they.”
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making an impression; it should be a memorable and
positive one. You know that the judges will hear four
cases that day, they heard four the day before, and they
will hear four the next day before they will meet in
conference to decide these cases. For you to make a
memorable impression, you must display candor,
sincere conviction, and the utmost respect for the court
and opposing counsel. Judges will want to clarify points
in the record and in your brief. They will want to
make some assessment of how the points that you
advocate affect law enforcement, honest business, and
other fields of law. You will want to lay to rest any
doubts and misgivings they may have about your case.
You will already have developed a theme, a coherent
presentation of your argument. You will have written
down the first sentence that you will deliver and the
last one, emphasizing that theme. Your argument
between these sentences may very well be a colloquy
with the court. You should welcome questions from
the bench. This oral argument will likely be the first
time that the panel has come together as a group to
consider your case. Good answers to their questions
will strengthen your oral argument and your case.
Two Never-Do’s. Sometimes a question will come
from the bench before you have reached the point in
the argument where you would logically speak to it. In
the U.S. Supreme Court during an oral argument, Justice
Marshall asked a question. The lawyer said, “I’m not
there yet, Your Honor.” Justice Marshall responded,
“You are there, now.” Indeed, you are there now.
Answer the question. If the question goes to the heart
of your case, give it as much time and attention as you
reasonably think you should. If the question is
peripheral, or even argumentative, answer it with a
“Yes” or “No” if you can or otherwise give a brief
answer and try to return to your argument.
Sometimes, you may get a question that doesn’t seem
at all about your case. Is the judge confused? Does he
really think that the facts that he stated are the facts of
your case? Some advise responding to such questions
by first saying, “Of course, that’s not this case, ...” and
then go on to answer the question. Justice Scalia, when
he was on the D.C. Circuit, would sometimes say, “Of
2
course I know that that is not this case. Do you think I
am stupid?” The judge is asking you a “what if”
question — if I rule for you, what will that mean?
Things to do before you start your argument. Check
out the courtroom in advance. My first argument in
the U.S. Court of Appeals for the D.C. Circuit started
this way: “DON’T TOUCH THE MICROPHONE!!
MY GOD, CAN’T YOU READ?” shrieked presiding
Judge David Bazelon before I even opened my mouth,
as I raised the microphone. Sure enough, Scotch-taped
to the lectern was a 3x5 file card, which read, “Do Not
Touch the Microphone. Raise or lower the podium by
pushing the switch on the right side.” Another 3x5 file
card described the system of lights. Yet another listed
the names of the three panel judges. (In my most recent
argument in the D.C. Circuit, on April 13, 2001, I
observed that the lectern and the microphone still go
up and down together by pressing the rocker switch.
The signs are now in plastic, affixed to the lectern.)
Before the argument, ask the clerk about the system of
lights that let you know how much time you have
remaining and when your time is up. If you have been
given 20 minutes for your argument and want to save
five minutes for rebuttal, it will be important for you to
ask that the red light go on after 15 minutes, not 20. If
there is a digital clock on the podium, be sure you know
whether it is a regular clock that will let you know how
much time you have used, or a countdown clock that
shows how much time is remaining. Take the keys and
coins out of your pockets and leave them in your desk
drawer. Nothing so detracts from a fine argument as
the nervous jiggling of keys and coins in your pocket.
I recommend that men wear dark, conservative suits
with nondescript ties and that women wear dark suits
with a plain white, silk blouses (and no colored scarves
or jewelry). Anything that will call attention to you or
your clothing may detract from your argument. (Judges
wear black robes.)
At the counsel table should be a colleague who worked
with you on the brief and is intimately familiar with the
record, as you also must be. I assume that, as should
usually be the case, the lawyer who tried the case below
will not argue the appeal, although sometimes he will
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also sit at counsel table. I have no objection to his
sitting there, provided that he play a subordinate role
to the colleague who actually read the record on appeal.
In my experience, trial lawyers vividly recall events
that I could never find in the record, such as bench
conferences with the judge that were never recorded,
motions never made, and documents never offered into
evidence.
Tell your colleagues at counsel table not to hand you
notes during your oral argument, unless you have made
an extremely serious error of fact or law. Tell them
that if anyone tugs at your coattail because you have
not read a note, when you get back to the office you
will chop off his arm.
Open your argument with the traditional “May it please
the court.” Avoid possible openings, such as “Good
morning, your Honors.” To be on the safe side, call
every judge “Your Honor” and not by his name, unless
you are certain that you will be exactly right each time.
In a recent U.S. Supreme Court oral argument, a lawyer
consistently confused the names of certain justices, even
calling one “Justice Brennan” (who is deceased). And
I cannot tell you how many times I have heard Justice
Scalia’s name mispronounced by emphasis on the first
syllable, instead of the second.
There are many answers to the question: “What should
I bring to the lectern?” I write out my oral argument in
advance and read it over to myself many times, until I
can distill it into a page or two of key points, words
and phrases. Separately, I prepare a three-ring notebook
binder containing one sheet of bullet points for each
issue that is not in my direct presentation, but as to
which I anticipate a possible question. There might be
five or 30 pages in that binder. Each page is tabbed,
and before I go to the oral argument, I am very familiar
with the tabs and the points on the sheets in this binder,
so I am able to flip to that page immediately as a
question is being asked.
I bring to the lectern, then, three separate sets of
documents: a one-or two-page summary, the writtenout-at-length oral argument (each point starting at the
top of a new page), and the three-ring binder. On each
of these three sets of documents, in the margins, I have
AUGUST / SEPTEMBER 2001
written page numbers of the record and citations of
cases in the event I am asked, “Where is that in the
record?” or “What case supports that?” The first page
of my notebook contains a chronology of all the dates
in the case that are important.
I never read from the prepared oral argument. Nothing
is so deadly boring and ineffective as reading from a
text. I bring the prepared oral argument as a safeguard
in the event my mind should suddenly go blank. (In
over a hundred appellate arguments it never has
happened, but I still do it.)
Rebuttal. If you are the appellant, you should always
save time for rebuttal. In part, this is because you want
an opportunity to have the last word. Also, you signal
to your opponent that you are not going to let him get
away with anything, because you are going to come
back to argue after he is finished. If your entire time
has been used up in your opening argument as a result
of questioning from the bench, before you sit down,
ask whether the court will grant you a minute or two to
make rebuttal. Courts almost always will do that.
Rebuttal should be prepared during the argument of
counsel for the appellee. Never prepare the rebuttal in
advance. Rebuttal should be snappy and short and only
highlight a few points. If there is nothing really worth
responding to, waive rebuttal. That is a signal of your
confidence in your case.
If you are the appellee, your argument is somewhat
more difficult, because you will have to decide on your
feet how to respond to the argument just made by
counsel for the appellant – whether you should respond
directly to points that counsel made or whether you
should argue your own points in a different order.
Presumably, counsel for the appellant will have started
with his most important point, and you might wish to
start with your most important point, rather than directly
rebutting his. This is a judgment call, influenced in
large part by your assessment of how the judges
received your opponent’s arguments.
3. The argument you wish you had made. As you
leave the courtroom, you or your colleagues may realize
that you responded to a question incorrectly. Or perhaps
you did not know the answer to a question or were
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unable to correct a misapprehension held by the court because you did not
have at your fingertips the accurate citation to the record or to a case. You
probably remember that when the last lawyer finished his argument, the
presiding panel judge said, “The case is submitted.” This is shorthand by
which the court tells the lawyers that it does not want to hear anything
further about the case. Nonetheless, if you believe that you committed a
serious error or omission, it may warrant a very short and a very prompt
letter to the court.
When you get back to your office, do not have lunch, do not check your
voicemail and do not read your e-mail. Write that letter immediately and
hand deliver it to the court. Ideally, only a few hours will have lapsed. Of
course, hand deliver a copy of that letter to your opponent.
If generalized remorse overcomes you in the shower the next morning,
there is really not much you can do. I recommend turning on the cold
water.
Finally, it is not a good idea to celebrate a wonderful argument or
commiserate about an apparently terrible one until the court’s opinion is
actually received. It is a hazardous occupation to speculate on how a
court will rule based on questions from the bench or other supposed signals.
Hopefully, in the fullness of time, you will be able to uncork the champagne.
NOTA BENE
Underscoring the need to carefully designate parties at the outset of a case,
the Tenth Circuit has dismissed an appeal brought by a group of unmarried
heterosexual adults challenging Utah’s fornication and sodomy laws. In
W.N.J. v. Yocom, No. 00-4124, 2001 U.S. App. LEXIS 15532 (10th Cir.
July 10, 2001), the court held, because the plaintiffs used pseudonyms
without first obtaining permission from the district court, the case was
improperly filed and neither the district court nor the court of appeals had
jurisdiction over the case.
ON THE DOCKET
The Third Circuit recently affirmed a summary judgment dismissing RICO
claims in an investor class action against the general partners of a real
estate limited partnership and a brokerage firm in Matthews v. Kidder
Peabody and Co. Inc., 2001 WL 862664 (3rd Cir. (Pa.)). The court held
that the RICO claims, premised on securities fraud in the sale of limited
partnership units, were time barred, because there had been sufficient “storm
warnings” in the 1980’s to put plaintiffs on notice of their alleged injuries,
and they had failed to exercise reasonable due diligence to investigate
their potential claims. David L. McClenahan, Kenneth M. Argentieri,
Michael J. Lynch and Paul E. Del Vecchio of K&L’s Pittsburgh office
represented the prevailing parties.
This Update is a bi-monthly
publication of the Appellate Practice
Group of Kirkpatrick & Lockhart LLP.
EDITORS
David R. Fine
Frederick Linton Medlin
CONTRIBUTING EDITOR
Paul Gonson
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© 2001 KIRKPATRICK & LOCKHART LLP
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