One thing that can set appellate lawyers apart from most people (and there are many) is they tend to watch more oral arguments. Appellate lawyers thrive on keeping up with new case developments and hearing how justices and judges are engaging with all parties. We appellate lawyers also like to learn what types of questions justices and judges are asking, and perhaps merely listen to the rhythm of oral argument. All of these elements are important to an appellate lawyer and can help them to prepare for oral argument. However, what is the most important thing in preparing for oral argument?
As in most areas of appellate practice, the answer is to make sure you are meeting the court’s expectations. In Ohio’s district appellate courts, expectations are almost always in the local rules. The Ohio Supreme Court Rules of Practice contains a comprehensive set of technical rules governing oral argument at Rule 17.
Guide for oral argument
I am constantly surprised how many practitioners appear to be unaware the Supreme Court also publishes a separate Guide for Counsel: Presenting Oral Arguments Before the Supreme Court of Ohio. The court expressly refers counsel to this Guide in its notices setting oral argument; however, sometimes it is apparent that counsel have either failed to review it or have forgotten some key content.
The Guide is extremely helpful and includes such information as: when to arrive for argument (between 8:30 a.m. and 8:45 a.m. for an argument session starting at 9 a.m.) and where to sit (before and during argument).
It also includes a few items that I think demonstrate to the court: (1) you have read the document; and (2) you want to meet the justices’ expectations.
Don’t wear your ID badge to oral argument
Visitors to the Thomas J. Moyer Judicial Center in Columbus, Ohio, are familiar with the security requirements: you must have a photo ID, and you are issued a security badge that identifies the floors you are permitted to visit.
It is possible to tell whether or not someone has read the Guide for Counsel, as it instructs you to remove the security badge when presenting to the court:
While seated at counsel table, counsel should remove the visitor identification badge he or she was issued when entering the building. Upon leaving the table at the conclusion of argument, counsel should clip the badge to his or her clothing again until leaving the building.
Not infrequently, you will see a practitioner wearing their badge while arguing. While it does not harm the quality of their individual argument, it is a potential signal to the court that the attorney has not read the Guide. As a primary goal of an appellate practitioner is to appear both competent and conscientious, wearing the security badge to the counsel table or to the podium can certainly detract from those goals.
Understand language choices
The Guide contains three specific language choices in oral arguments, which if not followed are another obvious signal it has not been read.
The first language choice is the opening of each argument. The Guide prescribes it, including when to arrive at the podium:
When the chief justice calls upon counsel, he or she should proceed promptly to the attorney lectern. Once the chief justice has finished speaking, counsel may open with the usual acknowledgement: “Chief Justice and may it please the court ….
In my experience, there is no such prescribed opening at other courts, and I have traditionally opened most oral arguments with “May it please the court…” However, if you open that way in the Ohio Supreme Court, you are clearly demonstrating you were unaware of the Guide’s prescription to identify the Chief Justice first.
The other language choices are how to identify each justice in response to questions, and how to address authority authored by one of the justices. For example, it may seem obvious that members of the court should be referred to as “Justice ______” or “Your Honor,” but some people still call them “Judge.” It’s less intuitive that the court instructs practitioners to refer to a decision as “the Court’s opinion, authored by Justice ______” instead of “Justice ______’s Opinion.”
The concept of coded language can have negative inferences, but that is primarily when unfamiliar individuals do not understand the implications of specific word choices. Oral argument at the Supreme Court has coded language—but they have published the code for all to review.
What’s the takeaway?
The Moyer Judicial Center is an awe-inspiring building, and the courtroom itself is especially impressive. Making sure you have clearly understood the court’s expectations for argument before entering the grand building and being a part of its proceedings will go a long way towards demonstrating competence and effectiveness in communicating the way the court expects.