Eric. J. Magnuson and Geoffrey H. Kozen
BridgeTower Media Newswires
We read with interest a recent article describing reactions to the U.S. Supreme Court’s adoption of a “two-minute” rule. Jimmy Hoover, Lawyers Embracing Supreme Court’s “Two-Minute” Rule, Law360 (Oct. 18, 2019). For those of you not familiar with the policy, at the beginning of its October 2019 term the court announced that no justice would ask questions within the first two minutes of an advocate’s oral argument. The article interviews several Supreme Court advocates, all of whom support the policy. Generally, they believe that it will allow them to frame their argument in a more comprehensive way than they could when questions began seconds in.
The Supreme Court’s rule, and lawyers’ reactions to it, are consistent with the teachings of countless experts on appellate litigation nationwide: You need to tell the court in the first minute what you want, and why you should get it. And because research shows that listeners, like readers, remember the opening and closing of an argument better than the meat of the thing, your nutshell start should be the mirror image of your one-minute conclusion, and both should make your case without the need to say more.
But that advice is general enough that it may not provide much help when you’re sitting in your office planning your argument, struggling to figure out how to compress the essence of 29 different, interlocking ERISA regulations, say, into a minute or two.
To start, careful preparation is critical to presenting an effective oral argument.
In her article Twenty Tips from a Battered and Bruised Oral-Advocate Veteran, 37 Litig. 1 (Winter 2011), Sylvia Walbolt (a prominent appellate lawyer and former president of the American Academy of Appellate Lawyers) emphasizes the importance of proper preparation: “There is no better way to be sure you are as prepared as humanly possible than to subject yourself to a mock oral argument before some folks who are completely cold to your case other than from the briefs. Being prepared is better than being a great oralist. It also is better than being well-dressed. One appellate advocate appeared for argument in a beautiful custom-made suit. Unfortunately, he was not well-prepared to argue, causing one judge to comment to another ‘Better dressed than equipped.’”
So how does one go about preparing?
There are any number of thoughtful and helpful articles and texts that talk about oral argument from the perspective of the court, the lawyers, and those who have been both. Some good resources for getting started include Myron H. Bright, “How to Win an Appeal: The New Ten Commandments of Oral Argument,” 32 Trial 68 (July 1996); Jason Val, “Oral Argument’s Big Challenge: Fielding Questions from the Court,” 1 J. App. Prac. & Process 401 (Summer 1999); and Michael A. Wolff,”From the Mouth of a Fish: An Appellate Judge Reflects on Oral Argument,” 45 St. Louis U. L.J. 1097 (Fall 2001).
Two common themes are clarity and simplicity. It’s critical to have a clear idea of what you are actually trying to accomplish, and what the judges actually need to know to allow them to rule in your favor. Next, cut out any points that, while they may be important to the litigation as a whole, aren’t relevant to the issues presented in the appeal. Though this seems straightforward and self-evident, you would be surprised just how many lawyers use their appeals to argue every grievance they have, distracting from the focus of their argument. Judge John Godbold, who spent 20 years on the 5th and 11th Circuits, kept “a file of examples of poor appellate advocacy.” One of the most egregious examples was “a 58-page brief, of which 19 pages, one-third of the brief, are devoted to complaints about rulings and events before trial and at trial, followed by a statement that none of these matters is claimed to be reversible error.” As a result, “[t]he crucial question” was “given three pages of superficial and incomplete discussion. Counsel squandered his time and his client’s money to compose and print a litany of bruises to his emotions.” John C. Godbold, “Twenty Pages and Twenty Minutes – Effective Argument on Appeal,” 30 SMU L. Rev. 801, 808 (1976).
Once you’ve narrowed your opening to cover the key issues on appeal, the next step is tying them together across each section of the argument. Judges, like most of us, often struggle to remember specific arguments and facts. “Judges need all the help they can get in identifying and understanding the issues, legal and factual, and reaching the right answer. They are neither all-wise nor all-seeing.” Twenty Pages and Twenty Minutes at 808. It’s important to keep in mind that while you may be living and breathing this case, judges hear multiple oral arguments a day, and sometimes dozens per week. They need to be able to recount your key points to one another in conference. As we have said on occasion, your argument should play a tune that the judges can at least whistle when the argument is over. They may not have all the notes, but they should have the melody clearly in mind. A consistent beginning and end, with a strong theme tying them together, provides the best chance of that. The theme provides judges with something to latch onto, some framework that allows them to keep the points you make fresh. It should weave all the relevant points into a single, clear, unifying way that carries across the whole span of the argument. To say it needs to hit everything is not to say that it must be in the weeds.
Simplicity is harder to achieve than it sounds. In order to boil your case down to that powerful nugget to be presented in the first and last minutes of your argument, you have to understand all the nuances of the case, and you have to account for them in your theme. Loose points, like loose threads in a sweater, can lead to your whole argument unraveling. At the same time, however, it’s best to keep the theme at a high level, hitting the key points broadly speaking, while providing details only in response to questions as they come up.
So how do you balance the need for thoroughness with the need for simplicity? That’s a question that can’t be answered generally, but is inexorably linked to the content of each appeal. But remember, you are the captain of the ship for the first minute or two of your argument. Use it to set the proper course. Questions will come, but if you have set out a strong and clear path, you can deal with them. Rather than being a challenge to overcome, or another opportunity to restate your briefs, they can be used to tailor your position to the issues weighing most heavily on the judges minds.
At the end of the day, to persuade a judge, or a panel of judges, the lawyer must be heard. And to be heard, the lawyer must speak clearly, concisely, and directly. And a two minute head start, if used effectively, can make all the difference in the world in accomplishing that goal. Be prepared for it. If it doesn’t happen, you’ll still have gone through a valuable exercise that will help you in delivering your argument. And if you’re lucky enough to get that time to make your case, you’ll be ready to make the most of it.
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Eric J. Magnuson is a partner at Robins Kaplan LLP and served as chief justice of the Minnesota Supreme Court from 2008 to 2010. He has more than 35 years of experience practicing law and he focuses his practice almost exclusively in appellate courts. Geoffrey Kozen is an associate at Robins Kaplan.
