As part of a larger “Guide for Oral Argument” (dated January 2020, and designated “Version 2.0”), the Federal Circuit provided the following “Guidelines for Counsel During Argument.” Many of them are applicable as well to practice in the New Jersey appellate courts and the Third Circuit. Bracketed material is my commentary on the guidelines.
Counsel should not interrupt a judge. [This is first on the Federal Circuit’s list, and for good reason.]
Assume the court is familiar with the facts of the case. [Advocates waste precious time and “lose their audience” by doing the contrary. If, as argument proceeds, it becomes clear that a judge has overlooked or misinterpreted some important fact, that is the time to address it.]
Minimize reading. [Reading can be boring; colloquy is much more informative and interesting.]
Have a copy of the appendix and be familiar with the location of items. [Where the appendix is huge, having it in court is not always as feasible as it might be. But having at least the table of contents for the appendix generally allows counsel to point the court to a relevant item.]
Assume the court is familiar with the briefs and appendix contents. [See “Assume the court is familiar with the facts of the case,” above.]
When raising new authority at argument, provide a copy to opposing counsel ahead of time. [This is professional courtesy.]
Stop your argument when your time expires unless the court permits you to continue. [This one applies in the Third Circuit, where (as in the Federal Circuit) there are express time limits for each party’s argument, and green, yellow, and red lights at the podium enforce those limits. In our state appellate courts, counsel need to stop their argument when a jurist says “We understand your argument” or asks “Is there any other point you wish to make? Or if body language shows that the jurists have stopped listening.]
Answer questions directly. [Every judge or court that offers oral argument advice gives this advice. It is the best possible advice.]
Avoid pejoratives. [Judges react badly to them, and they never advance an advocate’s arguments.]
When referring to specific portions of the appendix, provided accurate page citations. [Accuracy in all respects is always important.]
Do not respond to a question with an unqualified citation to your brief in response to a question. [Since counsel are to “Assume the court is familiar with the briefs,” saying that one’s response is contained in a brief does nothing to answer the court’s question. If the material in the brief answered the question, there would have been no need for the question.]
Counsel seated at counsel tables should neither make inappropriate facial gestures nor engage in exaggerated gesticulation. [Duh.]