Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Arguing at the Appellate Level: A Judicial Clerk’s Perspective

0417-Appellate-LevelWhat to do—and not to do—in oral argument

Through her experience as a clerk, the author learned that the best appellate attorneys accomplished two goals at oral argument—helping judges reach a well-reasoned decision while at the same time firmly advocating for their clients. This article offers tips to help appellate lawyers achieve both goals.

My first job as a law school graduate was clerking for the United States Court of Appeals for the 6th Circuit. In many ways, an appellate clerkship is a quiet and solitary position. But that sense of isolation evaporated whenever the week of oral arguments arrived. Oral argument brought the attorneys and judges into one room to hash out competing arguments and challenging legal issues. As a clerk, I repeatedly observed this interchange and how it affected the judicial decision-making process. Gradually, I came to appreciate that the best appellate attorneys accomplished two goals at oral argument: (1) they helped the judges reach a well-reasoned decision, and (2) they firmly advocated for their client. These two goals do not always easily coexist, but both are indispensable to effective appellate advocacy.

Judicial views of oral argument

Judges’ chambers follow a regular pattern in preparing for oral argument. The clerks read the briefs, research the law (including cases above and beyond those cited in the briefs), draft bench memoranda, and discuss the cases with their co-clerks and judge. Judges read the briefs, review the bench memoranda, and often ask their clerks for additional research on particular issues. Judges will often pose questions to their clerks that they will later raise at oral argument. All of this preparation means that judges have typically formed a preliminary determination about the case by the time of oral argument. They then use oral argument to confirm or dispel that impression.

Both in chambers and during oral argument itself, I encountered a wide range of judicial postures toward oral argument. Some judges focused primarily on the factual record during oral argument. Other judges used oral argument principally as a forum to discuss the law and the implications of each party’s proposed application of law. Sometimes, judges would use oral argument as an opportunity to explore an interesting intellectual question, even if that question was unlikely to affect the final decision. The most common tendency I saw among judges was using oral argument to question attorneys about the weakest parts of their case, essentially providing the attorneys an opportunity to rebut the judge’s preliminary conclusions on that issue. Finally, oral argument presented an important opportunity for the writing judge (and his or her clerk) to gain insight into the other judges’ thoughts and concerns, enabling them to draft a majority opinion that incorporated each signing judge’s viewpoint.

Oral argument as a tool to help the judges

The most effective oral advocates that I observed treated oral argument as a conversation during which they guided the judges toward a reasoned decision that favored the client’s interests. Less effective advocates, on the other hand, tended to treat oral argument as a lecture or presentation where the conclusion was foregone and persuasive reasoning was unnecessary.

Techniques of effective advocates

Here are the key techniques I saw effective advocates use to help the judges reach a reasoned decision:

  • Squarely answering questions without excessive hedging. It is extremely helpful for the judges when a lawyer answers their yes-or-no-questions with a “yes” or “no” (or “I don’t know”). Attorneys who attempted to dodge a difficult or uncomfortable question only made their position look untenable. Question-evasion is also extremely frustrating for the judges and rapidly depletes their patience. That being said, a good advocate will usually follow a preliminary “yes” or “no” answer with explanation or caveat. But trying to evade the question entirely is not helpful for the judges or the client.
  • Answering questions in a way that clarifies rather than confuses the record. The judges and clerks want to know the record as well as the attorneys. That means that the best oral advocates should lend clarity rather than confusion to an already complicated case. This skill requires having a thorough knowledge of the factual record, being able to resolve any confusion about the facts, and being able to provide citations to key portions of the record. It also entails having the candor and humility to admit: (a) an undisputed fact in the record, even if it’s not the best fact for your client, and (b) the absence of binding legal authority to support a particular argument. In many cases, this skill includes asking a judge to repeat or clarify a question, as sometimes judges will pose convoluted questions or questions premised on a faulty understanding of the facts.
  • Communicating a thorough and nuanced understanding of the legal landscape. Oral advocates with a thorough knowledge of the applicable law are better able to dialogue with the judges about the appropriate outcome in a case. That is because judges tend to take an overarching view of law and clerks consistently go beyond the immediate issues in their research. Thus, attorneys with broader knowledge of the law have an advantage over attorneys with limited knowledge because they can better understand the judges’ perspective. Similarly, attorneys who are aware of authority contrary to their position are better prepared to answer the inevitable question about how that authority affects the case.
  • Picking up on and addressing opposing counsel’s arguments. Effective oral advocates understand that oral argument does not occur in a vacuum. They study the counterarguments contained in their opponent’s brief. They listen carefully during the opposing party’s oral argument and to the questions posed by the judges to their opponent. They are then equipped to respond to the opponent’s main arguments, to correct the opponent’s misstatements of the facts or law, and answer questions that their opponent failed to answer.
  • Articulating a reasoned path, supported by facts and law, for the court to reach the desired result. The best oral advocate is able to step into the shoes of the judge (and the law clerk) and anticipate the problems a judge or clerk might encounter in writing an opinion that adopts the advocate’s proposed reasoning and conclusion. They then provide an avenue—supported by facts in the record and convincing legal authority—to overcome the anticipated objections, counterarguments, and tensions with other laws or facts.
Mistakes by less effective advocates

In contrast, here are the mistakes I saw less effective advocates make that counteracted their ability to help the judges:

  • Talking over the judges. Interrupting a judge’s comment or refusing to stop talking when a judge interjects with a question raises many judges’ ire and undermines the attorney’s persuasive capacity. Although talking over the judges might not substantively weaken an attorney’s legal arguments, it definitely distracts from them.
  • Being overconfident. Sometimes it’s clear from an attorney’s demeanor and lack of preparation that they assumed the judges would take their client’s part. This error is often fatal because it squanders the attorney’s final opportunity to answer challenges leveled at arguments expressed in the briefing.
  • Failing to recognize when a judge’s question benefits the client’s position. Oral argument is as much about listening as it is about speaking. It can be difficult to listen when you’re focused on persuading a judge to accept an argument, but careful listening is critical to addressing the judges’ concerns and questions. Sometimes, I saw attorneys so fixated on making their arguments that they failed to recognize when a judge’s question was actually calculated to guide the attorney toward an argument helpful for the client.
  • Trying to force the judges to focus on one point when the judges are clearly more interested in another. There is usually a good reason for a judge’s question, so it’s counterproductive to avoid the question in favor of addressing a different point. Moreover, it’s frustrating for the judges to have their questions dismissed as unimportant. The best oral advocates are willing to engage on the judges’ topic of choice, even if the attorney would prefer to discuss a different issue. Oral argument should be a dialogue—not a presentation—which means the attorney does not always get to dictate the topic of conversation.
  • Being overly emotional. I saw several attorneys who argued passionately against what they saw as a grave injustice to their clients. Passion is not necessarily misplaced at oral argument, but it must be carefully tempered to the audience. Oral argument is not the same as arguing to a jury, preaching a sermon, or delivering a political address.  Oral argument entails reasoning with a panel of judges who are bound by law. The judges are not free to decide cases based on their intuitive sense of right and wrong. They have to articulate carefully supported rationales for their decisions and may have to defend their reasoning against dissenting judges. That means that no matter how instinctively unjust a client’s experience seems, it is far better to use the limited time available to explain why the law supports a desired outcome, rather than pontificate about the wrongs committed against a client.
Oral argument as an opportunity to advocate for the client

While an effective oral advocate should strive to help the judges, the advocate has an equal, if not more primary, responsibility to represent their client’s interests. The duty to assist the court and the duty to advocate for the client are not always perfectly aligned. For example, an attorney must represent the client’s interests even when they know a particular position has some weaknesses. Sometimes, in the middle of a back-and-forth with a judge, attorneys unwittingly concede a judge’s point and in doing so defeat their own argument. As much as a good oral advocate should strive to help the judges, he or she must also stay true to the client’s position.

Here are some common techniques I saw from oral advocates who managed to strike this balance between judicial assistance and zealous advocacy:

  • Answer the judges’ questions, but turn the conversation. As mentioned earlier, good oral advocates answer questions straightforwardly. Oftentimes, that means acknowledging weaknesses in their case. But, for good oral advocates, an admission will not defeat their entire legal argument. Rather, good oral advocates show why the admission does not hurt the client’s case. They point out other facts or law that makes the admission less relevant, or they explain why an assumption underlying the judge’s question is incorrect. They spend as little time as possible admitting to a weakness in their case and turn the conversation to the strong points of their case—all without evading the judges’ questions or ignoring their concerns.
  • Avoid getting sucked too deeply into hypotheticals. One danger every oral advocate faces is getting sucked into a hypothetical that forces you to make damaging admissions regarding a fictional scenario. Many judges ask hypothetical questions to consider how a particular decision will set precedent for future cases. While future impact is important to consider, the attorney’s primary concern is the present case. Because hypotheticals necessarily involve facts outside the scope of the present case, they can easily lead the advocate down a path that is neither beneficial to the client nor immediately relevant to the present case. While it is important to engage with the court on hypothetical questions, it is equally important to point out where the hypothetical differs from the case at hand. Zealous advocates resist the pressure to concede arguments based on a theoretical fact pattern.
  • Argue with passion channeled by the bounds of law. As mentioned earlier, overly emotional arguments tend to disserve clients. But passion is not wholly inappropriate at oral argument. On the contrary, the most impressive oral advocates are those who argue with passion channeled by reason. I still recall one attorney who I watched argue two separate habeas corpus cases. He never spoke in abstract terms about the injustice of his clients’ criminal convictions, but he emphasized law and facts that made his clients’ convictions appear unjust and fall outside the bounds permitted by the Constitution. His combination of passion with reason made him one of the most persuasive oral advocates I witnessed.

My experience as a law clerk taught me that effective oral argument at the appellate level involves a careful balancing between helping the court reason through difficult legal issues and firmly representing the client’s interests. While these two goals can be in tension, attorneys who master both will undoubtedly earn judges’ respect and attention.


EMILY R. BODTKE is an associate in the product liability and environmental group of Faegre Baker Daniels in Minneapolis. Before joining Faegre Baker Daniels, she served as a judicial clerk to the Honorable Richard F. Suhrheinrich on the United States Court of Appeals for the 6th Circuit.  She received her J.D. from the University of Minnesota Law School and her bachelor’s degree from Hillsdale College.



One Comment

  1. Phil Gainsley
    Apr 06, 2017

    Good article! Thank you.

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