I had several appeals pending earlier this year, so it wasn't a complete surprise when I received the order from the Florida Third District Court of Appeal setting one of them for oral argument. I had been waiting for this opportunity since law school. Although this would be my first real oral argument, I had (or thought I had) some experience with appellate arguments through participating in my law school's moot-court program and clerking for an appellate judge. What I didn't realize is that nothing can really prepare you for your first oral argument—except, of course, preparation itself.
About a month before the scheduled argument, I got anxious. What if I had missed an issue in my brief? What if I had misstated the holding of a case? What if I couldn't answer a judge's question? The issues on appeal were similar to many I had encountered before—a relatively straightforward appeal of a mortgage-foreclosure judgment. Because Florida is a judicial-foreclosure state, the bank filed suit to foreclose after the borrower defaulted. After a non-jury trial, the court entered final judgment of foreclosure to the bank, and the borrower appealed. The borrower raised several issues on appeal regarding the bank's standing to foreclose and evidence admitted at trial, but there was no dispute that the borrower had been in default on the loan for over five years. I drafted the appellee's brief on behalf of the bank several months before the case was set for oral argument and, at the time, didn't think that the case was particularly argument-worthy. So why did the court order oral argument in this case?
To find the answer to that question and start preparing for the argument, I thought about the dual purposes of oral advocacy: persuasion and education. Appellate arguments present a rare opportunity to stand before the court to persuade the judges that your client should win and educate them by answering questions that were raised or left unanswered in the briefs. I decided that if I knew everything there was to know about my case, I would be able to answer the judges' questions and persuade them that judgment for my client should be affirmed. My goals were seemingly basic: know the facts and issues, master the record and key authorities, and practice and refine my argument. If I went to court prepared, no one would know that I was a rookie (or so I hoped).
Know the Facts and the Issues
The briefs are the best starting point for a comprehensive refresher on the facts and issues on appeal. This includes studying the factual and legal arguments, the cases cited in the briefs, and any issues not clearly stated in the briefs that should be brought out at oral argument. As I immersed myself in the case once again, I tried to think of every conceivable question a judge might ask during oral argument—from the facts and case law to policy arguments, the standard of review, and the relief sought. It was surprising (and somewhat disconcerting but, I understand, totally normal) how different the issues and arguments appeared after several months away from the case. I also conducted new research to ensure that the cases I relied on were still good law and to consider whether I needed to alert the court to any new law before the argument. To consolidate my review into a usable aid, I began drafting a comprehensive outline to track the issues on appeal, relevant law, and questions I might encounter at argument. Then I turned to the record.
Master the Record
It's a no-brainer that a successful oral advocate must know the record inside and out. Depending on the case, this can be a daunting task involving hundreds or thousands of pages of documents and testimony. In my case, one of the most important issues on appeal (and, as it turned out, the primary issue the court focused on during argument) related to the testimony of the bank's witness at trial. Because I expected the court to ask questions about the substance of the witness's testimony and his qualifications to testify, I studied the trial transcript and memorized several key pieces of testimony that were vital to my case. I also made a timeline of the case and a "cheat sheet" to review before oral argument, highlighting parts of the record I wanted to bring to the court's attention.
Practice, Practice, and More Practice
As I became increasingly familiar with the case in the days before the scheduled argument, I refined my outline to a one-page summary that I could take with me to court. Then I began to practice my argument, over and over. I practiced delivering my argument out loud, standing up, from start to finish, and in different orders. I repeated this exercise until my argument felt natural and I was comfortable transitioning between topics. I also watched several recorded arguments available on the Florida Third District Court of Appeal's website to get a feel for the courtroom, judges, and counsel.
I was nervous the morning of the argument but felt I was prepared to take the challenge head-on. I reviewed my notes and outline, and practiced my argument a few more times. My case was third on the calendar, so I had the chance to observe a few live arguments before my case was called. Next thing I knew, appellant's counsel approached the podium and began her argument. As counsel for the appellee, it was my job to listen carefully to the appellant and observe how the court questioned and responded to her arguments. I jotted down a few notes and planned to begin my argument responding to several of the appellant's initial arguments.
Of course, that didn't happen. I stood up and the questions began even before I could introduce myself. The panel clearly had an agenda and was really interested in only one of the several issues on appeal—whether the bank's witness was qualified to introduce the business records that established that it had the right to foreclose. My answer was unequivocally yes and I explained why. I expected these questions and was prepared to answer them. The remainder of my 10-minute argument consisted of a series of questions, answers, and my repeated attempts to steer the court to rule in favor of my client. I sat down and felt satisfied that I had successfully persuaded and educated the court.
After the argument, I realized something I thought I already knew: that oral argument is really not an "argument" at all, but an intellectual discussion. The key is to be prepared to lead the discussion. The real challenge of my first oral argument—and of every oral argument to come—was to be prepared to advocate for my client and to be prepared to persuade and educate the court. My first argument was a success because I was prepared and embraced the challenge. Don't hesitate to accept the unique opportunity that oral argument presents. If you're prepared, you will succeed. You might even win.
Republished with permission. This article first appeared in Appellate Practice, published by the American Bar Association on July 1, 2014.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
