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There have been so many useful papers written on appellate advocacy that it’s a little daunting to say anything fresh. While I can’t offer any blindingly new insights, I would like to focus on a few aspects of advocacy that I think merit attention: the importance of context; getting straight to the point; and making it interesting. I’ll also say a few words about questions, and the need for flexibility and improvisation.

Does Oral Argument Matter

First, though, a question we have probably all thought about at some point. Does oral argument really matter? Can it affect the outcome of an appeal? I confess to having some doubts about this, but appellate court judges insist that it does matter. And I think the best evidence comes from comments made by Justice Binnie and Chief Justice John Roberts of the U.S. Supreme Court, both outstanding oral advocates in their day.

They both make the same point: the Court conference that takes place after the conclusion of oral argument gives you a seat at the table, and the chance to influence the outcome. It’s at the conference where the judges decide the outcome, and since they don’t discuss the case in advance of oral argument, it’s only natural that the arguments play a role in framing the debate. Justice Binnie describes the process as an ever increasing narrowing of the issues to the point reached at the conference where the issues are “distilled down to the most critical essentials.” The implication of this, he says, is that “oral submissions should narrow, not broaden, the area of controversy.”

This insight highlights for me the importance of thinking through the structure of the oral argument. I try to put a lot of thought into the order in which the points are going to be made. What you try to strive for is to have the points flow seamlessly into one another to reinforce the overall theme of the presentation. In his excellent writings on factums, Justice Laskin talks about point first writing: the importance of putting the point into context before going into the details. This helps the reader to better process the information and understand the argument.

The Importance of Context

I think the same holds true for oral argument. You want the argument to be attractive to the ear and as easy as possible for the listener to follow. Some approaches I’ve found to be helpful are:

(1) begin by putting the argument into its broadest possible context. Give the Court a        sense of the big questions involved in the case, before going into the points you want to      make;

(2) go through a list of the undisputed facts which frame the legal issues before the Court, or         help to place them into a proper context;

(3) put your opponent’s argument to the Court in the strongest possible terms and then   proceed to knock it down. If you’ve read editorials in the Economist magazine, you see that      they often set up their arguments in this way, and it’s a very effective technique.

Get Straight to the Point

In the U.S Supreme Court, the lawyers can barely get a word out before they’re peppered with questions for the remainder of their 30 minutes. Our Court is not like that, and if anything I think the Court sometimes lets the lawyers go on too long before challenging them with questions. But the point remains that judges come into the hearing well prepared, so in my view there’s no reason to waste any time on preliminaries about the parties, the court appealed from, the result below, the positions of the parties or anything else the Court is already fully aware of.

I think it’s best to grab the attention of the Court from the outset and launch straight into your strongest point, taking care to put it into its best possible context. There are many excellent advocates who like to provide the Court with a roadmap of their upcoming argument. There’s nothing wrong with that approach, but personally I don’t use it because I feel it takes away from those precious opening moments when you have the full attention of the Court. There’s nothing worse than getting bogged down or side-tracked answering questions on peripheral issues before you’ve had the chance to make your best points. By going “straight for the jugular” you can at least ensure that the questions are on subjects you most want to talk about.

Make it Interesting

Which brings me to the importance of making the argument interesting. By the time you get to oral argument, the facta of the parties and interveners have all been filed, the issues have come into sharper focus and you’re in a position to distill the case down to its critical essentials. This allows you to put your submissions together in a way that is interesting for the Court, and this involves straying from the factum when you present your argument.

That is to say, there’s no need to rehash what you’ve written in the factum, because the Court already knows what’s there. Make the points differently from what appears in the factum, or make different points altogether. I’m sure we’ve all had the experience thinking of points you hadn’t thought of before, or seeing those points in a different way. There’s no doubt you can make a greater impact by straying from the factum than by regurgitating what’s there.

Here’s what Justice Binnie had to say in the Dubin Lecture, In Praise of Oral Advocacy: “Most counsel do their best thinking, fuelled by fright and adrenalin, in the 24 hours before an appeal is heard, and in some cases, 10 or 15 minutes beforehand, or perhaps not until the hearing itself. Every episode of intense thinking about a case brings new insights. The objective of the system is to get to the right result. The objective of appellate counsel is to be seen to be co-operating in this exercise of refinement while steering the case in a winning direction. If the debate moves on and you can’t divert it, you have to move with it. Otherwise, your participation ceases to be relevant to the outcome.”

Flexibility and Improvisation

Justice Binnie’s remarks highlight the importance of flexibility and improvisation in oral argument. And I’d like to talk a little bit about that in the context of questions from the Court. First, everyone agrees that questions are to be welcomed and must be responded to as directly as possible. No doubt, before the argument you will have spent a fair bit of time anticipating questions that might get asked and what you can and cannot concede.

It’s a given you’re going to get questions, and probably very tough questions, that are going to take you off your prepared remarks. In light of this, one of the most challenging aspects of oral argument is how you transition your way out of answers to questions, back into the flow of the argument you intended to make. Suppose you have three or four points you hoped to make in a particular order. It’s inevitable that the argument is not going to come out in the way you intended it, or that the points you wanted to make are all going to be made.

The challenge therefore comes in building on the answers without dodging questions, or making it appear that you’re not being fully responsive. The Court will be very annoyed and will quickly tune out if there is any perception you’re avoiding questions. However, there’s nothing wrong with using answers to questions as a springboard into the points you want to make, once you’ve provided a complete answer. It’s not something you can easily plan for, but the better prepared you are the easier this is to accomplish. This highlights the need for flexibility and improvisation in the way in which you approach oral argument.

Another difficult challenge is in dealing with momentum shifts that occur during the course of oral argument, which also calls for flexibility. Here’s how Justice Binnie described it from the judge’s perspective: “It is certainly my experience that in the course of the hearing of the appeal there comes a point, perhaps at first subconsciously, when the judge begins to see a way of resolving the important inconsistencies in the record and any contradictions in the case law to produce a just result. You have at least the beginning of ‘a good fit.’ At that point, the open mind of the judge begins to narrow and the appeal, I think, takes on a different complexion. That is the point at which momentum begins to build. The rules of engagement change. From the moment the working hypothesis is articulated, the judge’s focus is on whether, on further questioning, it can be sustained or knocked down. Either way, it likely becomes dispositive. This stage, I think, is the ultimate justification for oral argument.”

If the momentum is shifting in your favour, your job is to ride the wave and keep it on the right track. If it’s shifting against you, then I think the best you can do is to go after the underlying premises of the argument, and try and knock them down as Justice Binnie says. Again, this is not something you can easily plan for.

Let me close with the following: appellate advocacy is not unlike a theatrical production. It’s a one person show with audience participation. There really is no limit to the creativity that you can bring to the process, and the more you put into it, the more satisfaction you’ll get out of it.

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