Raffi Melkonian, an appellate lawyer from Texas and the dean of #appellatetwitter, has been working on what he considers the hardest problem at oral argument: the judge who has misunderstood something and is angry about it.
I'm listening to a series of oral arguments for "reasons," and I've decided the hardest OA problem is the judge who has misapprehended something but is also mad about it. Lawyers really get themselves into a jumble dealing with this issue. #AppellateTwitter
— Raffi Melkonian (@RMFifthCircuit) January 10, 2019
It’s a great thread. I Twittered some half-baked thoughts at Raffi, but this problem merits a more thorough take.
First, in an appellate oral argument, you have very limited time. An angry judge will burn it up. At best, the exchange will be a stalemate. But it’s much more likely to play out badly–think somewhere between “affirmatively counterproductive” and “total disaster.” So you must disengage as soon as possible. This problem will not solve itself.
Your method of disengagement will vary based on the nature of the confusion, but here are a few moves:
- If the confusion is factual: “Your Honor, JA 759 clarifies this point.” An angry judge will usually flip or scroll to JA 759. That breaks break the rhythm and creates a pause, letting you can finish your thought. Even if the target judge doesn’t flip, one of his colleagues probably (on a 3-judge panel) or surely (en banc) will. If you’re right, they may help you disengage.
- If the confusion has to do with a legal theory: “I’m sorry, Your Honor, this point wasn’t clear from the briefing. We’re not arguing that BigCorp couldn’t reasonably rely on the bring-down certificate as a matter of law. We’re pointing out that, on this Record . . .”
- If you need a complete reset: “I apologize, Your Honor, I wasn’t clear. Our point is that . . .”
The key takeaway here is that some phrases will usually defuse an angry judge and get the Court’s attention: “JA ___,” “this point wasn’t clear from the briefing,” and “I apologize.” That’s because judges want to get the right answer. They don’t want to be confused or made to look foolish by misreading an argument or missing a record cite. And they don’t particularly want to make you look foolish either (although they will if they have to).
Moot courts are a great time to identify confusing points about your argument and practice these escapes.
Second, don’t abuse this move. Always keep in mind your goals for the argument. They’ll usually include (1) advancing your client’s theory, (2) addressing the Court’s questions, (3) clarifying lingering confusion from the briefs, and (4) building credibility with judges and clerks. Using a reset to shut down a productive line of inquiry undermines each goal. It also gobbles up time. Disengage and reset only when the line of questioning is clearly counterproductive–that is, when a justice is both confused and angry, and continuing the conversation on her terms will hurt your argument.
Third, be mindful of the culture of your court. The Supreme Court of Virginia and the Court of Appeals of Virginia are gracious to the point of being courtly. You will rarely need to shut down a line of questioning in one of those courts. As a matter of tradition and culture, the justices/judges will let you explain yourself. They will rarely get visibly angry. (If they do, you’ve got a bigger problem than a blog post can solve.)
The Fourth Circuit, on the other hand, tends to be more rough and tumble. Expect a questioning at a higher velocity and, um . . . emotional intensity? Bring some moves.