I recently had the opportunity to speak on the subject of “Oral Argument in the Supreme Court of Canada” at the Commons Institute Conference on Constitutional and Supreme Court Litigation. The Chair of the Conference, my friend and colleague Eugene Meehan, suggested I make my thoughts more widely available, so here goes.
One of the great benefits of preparing the presentation was the opportunity to review some of the excellent writings on appellate advocacy here and in the United States. Particularly helpful were the views of two Supreme Court judges, both outstanding oral advocates in their day: Ian Binnie, recently retired from the Supreme Court of Canada, and Chief Justice John Roberts of the U.S. Supreme Court. Prior to his appointment, Chief Justice Roberts was widely regarded as the leading U.S. Supreme Court advocate with 39 appearances before the Court.
In two outstanding presentations while he was still on the Bench, Justice Binnie set out his views of advocacy from the judge’s perspective: “A Survivor’s Guide to Advocacy in the Supreme Court of Canada (1999), 18 Adv. Soc. J. No. 2; In Praise of Oral Advocacy (2003), 21 Adv. Soc. J. No. 4. Justice Roberts set out his views in “Oral Advocacy and the Re-emergence of a Supreme Court Bar (2005), Journal of Supreme Court History, 68.
As I could not hope to improve on these efforts, my presentation highlighted what I consider to be aspects of oral argument that warrant emphasis: (1) getting straight to the point; (2) making the argument interesting; and (3) the need for focus and improvisation.
Counsel on appeals in the Supreme Court of Canada are given one hour to present their oral argument. Interveners get ten minutes. In the U.S. Supreme Court, the time limit is 30 minutes and it’s rare that more than a few sentences can be uttered before counsel in that Court are peppered with questions. As much as one might like to prepare a carefully structured oral argument, it is the very rare appeal where it will be delivered as intended.
All of this suggests the need to get straight to the point. Judges come into the hearing well prepared. They have reviewed the facta of the parties, the proceedings in the Courts below and are familiar with the legal principles. Giving general introductions to the parties, the facts or the issues in the appeal take up precious time and raise the possibility of questions on tangential issues. Far better to “go for the jugular” and launch straight into the best points you have, taking care to put them into the best possible factual and legal context.
A corollary of this is to make your argument interesting for the Court. By the time oral argument comes around, much time will have passed since delivery of the facta. You will have reviewed the written argument of the parties and interveners, the issues will have come into sharp relief and you’re in a position to distill the oral argument down to its critical essentials. There is no need to rehash what’s in the factum since the Court already knows what’s there. Make your submissions in a way that differs from the factum, or make different points than those contained in the factum. Going for the jugular applies here too. By focusing on the narrow points that are really in dispute, you get to frame the debate and help the Court answer the questions at issue in a way that is helpful to your client.
There is little doubt that careful preparation is the key to appellate advocacy. This requires that counsel anticipate questions the Court is likely to ask, and be in a position to deal with problem areas raised by the other side. It’s a given that counsel is going to get tough questions that take you off prepared remarks. If three or four points were intended to be made in a particular order, it’s likely that questions will cause you to have to make the points in a different order, or that the points will not be made as fully as counsel would like.
One of the most difficult challenges of oral argument is therefore transitioning out of answers to questions and back into the flow of the oral argument. Make no mistake. Questions from the Court must be answered as directly and fully as possible. Once that’s been done, there’s nothing wrong with building on answers to questions and using them as a spring board back into the points intended to be made. The challenge comes in doing so without in any way dodging questions, and knowing where in the oral argument to go back to. All of this highlights the need for flexibility and improvisation in the way you approach an oral argument.
I closed the presentation with this analogy: appellate advocacy is not unlike a theatrical production. It’s a one person show with audience participation. There is no limit to the creativity you can bring to the process, and the more you put into it, the more satisfaction you’ll get out of it.
Photo via Flickr courtesy of Jamie McCaffrey.