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Judges offer advice to law students

March 03, 2011

After hearing three appeals cases in the Great Hall in Armstrong Hall, U.S. Court of Appeals for the Ninth Circuit Judges Michael Daly Hawkins, William C. Canby and Richard Clifton, discussed the importance of oral arguments on a case’s outcome and offered advice to law students about qualities of an exceptional appeals lawyer.

All three judges were in agreement that the most important quality of an above-average appeals attorney was the ability to answer questions well.

One of the biggest pet peeves of the bench is lawyers who avoid answering questions asked by the bench during the oral argument, Clifton said.

Hawkins maintained that this ability to clearly answer questions is crucial given that a question from the bench typically indicates a judge’s concern about that particular point. It is important that the lawyer can listen, absorb what is being asked, and then respond accordingly, he said. He added that it was essential to answer the judge’s question with a definitive “Yes”, a “No” or an “I don’t know,” before proceeding.

Clifton also argued that oral arguments were not only for the lawyers to deliver their remarks, but also to focus on what the judges need in order to make a final decision.

“Listen to the question, answer the question, and then fit your point into it,” Clifton said.

In addition to being able to clearly answer questions, being well-prepared for the case was another distinguishing factor between an average and exceptional oral argument.

“The best advice I could give anyone who is going to argue is to moot court the argument,” Hawkins said.

By practicing the argument, it is less likely that the attorney will be unprepared for questions asked during the actual oral argument, he said.

Still, Canby added that, it was just as important not to overly rehearse an argument. Instead, he suggested that it’s best to come to the argument with a note card containing just the points you really want to emphasize.

“Really get to the heart of your case and figure out the two or three points you want to get across,” Canby said.

The judges also focused on the weight of the oral argument on the court’s ultimate decision. While the court heavily prepares for cases, with 90 percent of the court’s work done before the oral argument, the oral argument offers lawyers the opportunity to change the court’s perspective. It is essential that the lawyer take advantage of the opportunity and not just rehash the written brief, Clifton said.

Hawkins said the arguments provide a chance for judges to raise their concerns, provide lawyers feedback on their arguments and validate their initial impressions gathered from reading the brief.

And while all three judges agreed that the oral argument is a significant part of the court’s decision, they also emphasized the importance of the written brief. For example, once asked whether to hire a lawyer who was a great brief writer and an ok oral arguer or an ok brief writer and a great oral arguer, Canby said, he would always recommend hiring the great brief writer.

Staci McCabe,
Office of Communications, College of Law