Oral Argument: Be Prepared to Listen

“Listening: Paying close attention; taking an interest in what is being communicated. A skill that has yet to be developed in men or cats.”

• James Napoli, “The Official Dictionary of Sarcasm”

“Give every man thy ear, but few thy voice. . . .”

• Hamlet, I,3; Polonius to Laertes

‘Fortune knocks at every man’s door once in a life, but in a good many cases the man is in a neighboring saloon and does not hear her.”

• Mark Twain

“If we were meant to talk more than listen, we would have two mouths and one ear.”

• Also Mark Twain

Dear readers, I like all of these quotations, and could not limit myself to just one! One of the biggest mistakes people make in any argument is talking more than they listen. Remind yourself of this before you face the panel. Yes, you have many notions, refined in the fire of a lengthy brief. Yes, you want to win. But don’t forget: the judges need more than adamant yammering. They need to understand. The more you understand what they need from you, the more they will understand you.

During oral argument appellate judges engage in discussion with you directly. They also engage in discussion with each other through you. Listen. Read their questions, their facial expressions, their body language. Really recognize what aspect of your argument they are trying to clarify. Then, and only then, respond accordingly. But most importantly, do NOT interrupt a judge when they are asking a question!

Also: never tell a judge that they asked a good question. The late Judge Richard Dinkins used to respond to that statement by saying, derisively, that they get only one of those a week.

Whether you are appellant or appellee, listen while your opponent argues. Note where they seem confident and where they falter. Even more important, pay attention to the judges’ reactions to your opponent’s arguments. My favorite moment of an oral argument is when the appellee stands up to talk after the Court has vetted the appellant’s argument. That is when the Court’s attention is the highest. I try to pick up the conversation where it left off, or answer a question that I liked that was asked by the Court to my opponent.

Listening is hard when the stakes are high, but that is when it is most important. While listening, we learn. It is the master key to the moment at hand. Use it.