On Monday, March 3, 2014, the Hawaii State Bar Association’s Appellate Section hosted a panel discussion entitled “Oral Arguments: Tips and Insights.” The Section’s presenters were retired Hawaii Supreme Court Association Justice James Duffy, and attorneys Chuck Crumpton and Janice Kim.
The panel provided valuable insight and advice on oral arguments, including the following:
• The HAWSCT now schedules oral argument for the overwhelming majority of cases it takes. The oral argument may affect/change the pre-oral argument inclination that Justice Duffy had in 15-25% of the cases.
• Sometimes the justices may throw you a softball question. Don’t assume the worst. Do your best to answer the question instead of dodge it out of fear that it could negatively impact on your case. Do not be afraid to make a concession if your case has a particular weakness; perhaps there is a distinguishing fact/issue why that fact does not concession is not a fatal flaw.
• Be prepared to have a 2-minute summary. Probably not at the beginning, but toward the end if you want to hit the high points on why the Court should grant the relief that you are requesting.
• Be clear about exactly what you are requesting. Don’t make a compelling argument and then leave the specific relief that you are requesting in question. State what you want, and perhaps offer a lesser relief in the alternative if the Court is not inclined to grant all of the relief.
• The justices do not confer, discuss or circulate preliminary memos prior to oral argument. The designated lead justice for the particular case will submit a bench brief drafted by him/her and their clerks, but they will not engage in dialogue or discussion prior to the hearing. They will not prepare inclinations prior to the hearing. They do not designate who will ask questions or agree on which issues should be clarified.
• After the hearing, the justices meet that same day. They effectively decide the case at that time—while it is fresh in their minds. Then, the justice to whom the case was delegated will typically write the opinion. If others have concurring or dissenting opinions, that will be sorted out at this time as well.
• Don’t attack co-counsel. Be respectful. Snide comments will get you nothing but a lack of respect.
• Try to memorize the facts of any/all cases that could possibly be relevant. Consider using word games to keep the facts straight and outlines. Consider cutting and pasting key holdings from seminal cases so that you can refer to the express language which the Court has adopted in related matters.
• Have friendly counsel engage in moot court. Practice, get critiqued, then go at it again. Use different counsel to quiz you and help you see where you need to put in additional work. Mock arguments sharpen your focus.
• Be humble. Be prepared. Then prepare more. You should know the facts, the law and every aspect of your case better than everyone else in the room. It is a huge undertaking and you should commit to a comprehensive and thorough preparation.
• The justices will astound you with how much they have studied and prepared for your case. Do not underestimate how much time the Court has invested in preparing for your case.
• Do not take any shortcuts in the work expected to be fully prepared. Whether your client has paid you or has instructed you to limit your preparation, your professional reputation is on the line. Do not take that responsibility too lightly.
• You may request not only an audio tape, but also the videotape. There is a small fee.
This blogger was unable to attend the event because she was preparing for her own oral arguments before the Hawaii Supreme Court. The above observations were provided to us by HSBA Litigation Section Chair Stuart T. Feeley, who attends various Appellate Section meetings and frequently comments on the outstanding presentations. Mahalo Stuart!