Judge Beverly Martin of the 11th Circuit Court of Appeals spoke to the Georgia Bar’s Appellate Practice Section yesterday on the subject of “What Makes an Effective Appellate Advocate.” More specifically, her focus was on effective oral argument. I’ve heard many talks on this topic, and I read about it all the time. I even write about it from time to time. Judge Martin’s approach to the talk was different from the typical talk on effective advocacy at oral argument, which often takes a very nuts and bolts (do this, don’t do that) approach with little attention given to what the result should be. Instead, she spent her time describing, virtually inviting the audience to imagine, the perfect oral argument. She left us with the task of working hard to find our way to that destination. In this post, I want to summarize what, in her eyes, the perfect oral argument looks like.
The Advocate is Fearless
A fearless advocate is one who knows the facts and the law cold and has thought about the possible implications of each. The advocate is fearless as a result of focused concentration on the case in the weeks leading up to the argument. The fearless advocate also is prepared to engage in a calm conversation with the Court about the case. Judge Martin spoke of a level of preparation so great that there is little that can’t be answered or discussed.
The fearless advocate is calm because that advocate is “ready to discuss any and every fact in a way that weaves into the lawyer’s theory of the case.”
Preparing to have a conversation and preparing to give a canned rehearsed speech are two different things. In addition, this picture of a perfect argument also presumes that the bench is equally prepared to have a conversation.
She cited a judge who told her, in her earliest days on the bench, that being an appellate judge feels like advocacy again. She explained that judges often come to oral argument having taken a position on the case, and that other judges often have different positions. The questions they ask the lawyers before them are often “adversarial” in nature and work as a tool to argue positions to the other judges on the panel. Which leads to the next part of the portrait of the perfect oral argument.
The Advocate is a Masterful Manager of Concessions
Then came the other part of the portrait of the perfect oral argument, which is more of an internal piece. It is important to concede the things that should be conceded to avoid embarrassment at having assumed a ridiculous position. But the need to make concessions must also be balanced with the knowledge that oral argument is “not a popularity contest.” Which means that it is equally important not to concede things that should never be conceded. Judge Martin explained that her colleagues are masters at getting lawyers to concede points at argument that will undermine the lawyer’s case and the other colleague’s position.
How do you know where this balance is between things that must be conceded and should never be conceded? It requires mastery of the facts of the case and the law governing the issues. Sometimes, even sufficiency of evidence arguments can be abandoned to the client’s peril.
The Rest of her Talk
Judge Martin’s discussion of the management of concessions then moved to the difficulty that comes in some cases, which is that “the rule of law does not bend to exclude distasteful people.” Which may be a clue in the handling of cases where there is a good legal issue but distasteful facts. Sometimes, perhaps, we undermine our argument in trying to sanitize things about cases that should not impact the outcome if we assume a set of participants in the legal system that are applying the rule of law dispassionately.
Judge Martin characterized the flow of work at the eleventh circuit as “shocking” in its volume for ten judges to undertake. She also explained that the court handles it very well because “if you don’t move it, you’ll be buried.”
It was a good talk on an area of growth for me. I’ve often said that I think oral argument is the hardest thing about being a lawyer but also potentially the most rewarding. I never feel more like “a real lawyer” than after an appellate oral argument that went well, and I never feel more like I should start some other kind of business than after a really bad one. Judge Martin’s portrait of a great oral argument has given me something to aspire to and to envision in the future.