I’m new to blogging, but not new to appellate practice. I’ve been at this for thirty-five years, and done almost 500 appeals, so I hope I’ve learned a little something that you can use if you ever find yourself confronted by a complex appellate issue – or a simple one. Of course, I’m aware that lawyers are busy people, and the last thing you want to do is read some didactic commentary on the latest change to the Rules of Appellate Procedure. So, I’m going to try to keep this entertaining. Like Shakespeare says, it is important that we members of the bar “strive mightily, but eat and drink as friends.”
So, for my first blog post, in an effort to be both entertaining and informative, I want to reach all the way back in my file to my first ever oral argument. It taught me two important lessons about being an appellate lawyer: (1) stay humble; and (2) it is sometimes more important to be a credible advocate than an articulate one.
It was just a few months after I passed the bar, and I was arguing my first appellate case. The only real advice I was given was: “You cannot really win a case on oral argument, but you can sure lose one.” Given how nervous I was, hearing that advice meant I prepared to the extreme. I was ready with responses to every conceivable question. Unfortunately, in the case argued right before me, a lawyer with a lot more experience than me had not prepared quite so thoroughly. Mid-argument, the senior judge on the panel told the lawyer directly that he had lost his case (something I later learned rarely happens). Needless to say, this did not make me more confident.
When it came time for me to argue, I could barely breathe. My stress made it very difficult to concentrate, and right away I was asked a question by the same senior judge who had chastised the lawyer in the previous case. The judge was the Honorable Henry Todd, who, having served more than 30 years on the bench, was in his seventies. He was well-known for the difficult questions he asked lawyers during oral argument.
I was just 26 years old, and looked about 12. I fiercely listened to Judge Todd’s question, so much so that I utterly failed to understand it. Echoing in my mind over and over was the warning: “You cannot really win a case on oral argument, but you can surely lose one.” In desperation, I played the “young lawyer” card, apologized for my inexperience, and asked the Court to repeat the question.
As Judge Todd spoke again, I listened even more intently. The question seemed even longer, and, to my terrified mind, even more incomprehensible. No doubt looking like a deer in the headlights, I paused, tried to breathe, and played, this time, the “young, stupid lawyer card,” asking Judge Todd to repeat the question once more. As the experienced judge and the floundering lawyer faced off, another judge on the panel said: “That’s Ok, Mr. Capparella, I don’t understand his question either. Please go on with your argument.” Somehow I was able to do so. The rest of the argument was a blur, but I suppose I did well enough, as my client prevailed when the opinion came out.
Thus, my career as an appellate lawyer got off to a stumbling start. One of my great regrets is that I was never able to ask the other appellate judge – the one that “saved” me – if he was just trying to help out a young, scared lawyer, or, like me, he really did not understand the question.
Either way, I came out feeling humbled about how difficult it is to stand at the podium for oral argument, no matter how well-prepared you are. I also learned that, if you don’t understand the question, it’s better not to try to answer it, and instead admit that you don’t understand. Given the look on my face that day during my first oral argument, I am sure I was credible in my incomprehension.