Oral Argument Advice from a Retired Justice

Reed Smith has a short paper on its website entitled “The Dynamics of Appellate Oral Argument.”  One of its authors served for fourteen years on the California Court of Appeal, so I think it is safe to say that this is some good advice.  The article addresses how the advocate can argue effectively despite not being privy to the “behind the scenes” activity at the court and possibly not being able to judge the motivation of the questioner:

You, of course, have entered the picture unaware of what went on behind the scenes and can only guess at what may be motivating a question.  For this reason, your first task as an advocate is to listen carefully to the judges’ questions and comments and take careful note of their demeanor and body language with an eye to determining a question’s meaning and purpose. Although discerning the underlying purpose of a question may be akin sometimes to reading tea leaves, by doing so, you can focus your argument to deal with the concerns of the judges who may be unfavorably inclined toward your case.

This is a short, but valuable, read, with insights into the nature of questioning from the justices.