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May 14, 2009

Chief Justice Kelly's comments on oral argument

Appellate lawyers commonly give short shrift to the importance of oral argument, as appellate judges frequently remark that oral argument changes the outcome in only a small percentage of cases.' Chief Justice Kelly's comments on oral argument caution against giving too little thought to oral argument.' Her stated preference is for counsel to pick up the discussion where the briefs leave off, and to recognize how the case will affect the law.' Perhaps most reassuring to those with upcoming arguments, Chief Justice Kelly has no intention of eliminating the five-minute free fire zone.

OCJ Blog:' Do you have any intention to modify the five-minute' free-fire zone that has been used in recent years at Michigan Supreme Court oral arguments'

CJ Kelly:' No.' I think it's a good practice.' And I moreover urge' people to waive it with great caution, because it's the' one chance that counsel has to speak without being' interrupted, and we tend to be what's called a hot' court.' ' So I think that counsel should take every' advantage of that five minutes free-fire.' And if a' justice asks them to waive it, I think they should' consider politely requesting the justice to allow them' to finish and then telling the justice that they'll get' right back to them as soon as their free-fire time is' over, because otherwise they may never -- counsel may' never be able to get the big point out.' Likewise, that' five minutes should be used to make the most effective' presentation of the most convincing points that the' attorney has to make.' Too many times I see counsel' using that five minutes to just review the facts or' review what the issues are, and I always think to myself it's a waste of their time.' If any of the justices is' not aware of the necessary information they'll probably ask about it, but it's -- counsel shouldn't waste that' time by telling us things that are in the briefs that we ought to know.

OCJ Blog:' What role do your clerks play in preparing for oral' argument'

CJ Kelly:' Well, they write a bench memo for me, and usually the clerk who does that is the clerk who is working the case right from the start.' The clerk also gives me a written update on the position that other -- the questions that other justices have put forth in written memos that have been circulated so that by the time I get on the bench for oral argument I know not only what the issues are but how other justices have expressed their positions or their questions on those issues and how I have come down' on those issues in prior conferences and the justices and also how the commissioner's office has made -- what recommendations the commissioner's office has made.'

OCJ Blog:' What do you find persuasive in an oral argument'

CJ Kelly:' Well, I like a good response to the opposing brief -- the opposing counsel's brief.' In other words, picking' up the give and take where it left off when the briefs' were last -- were finished.' I particularly like oral' argument that will show an understanding of where the' various justices have been on the issue if it's one' where justices have taken a position.' And, finally, I' particularly like to hear some vision of how the' decision will shape the law.' Now not all cases lend' themselves to that, of course, but some do.' And where they do I've found this is -- a failure to do that is' one of the biggest weaknesses in oral argument that I' have seen.

OCJ Blog:' And again on the flip side again, what do you find' particularly unpersuasive in oral argument'' ' ' ' ' ' ' ' ' ' ' ' '

CJ Kelly:' It's really unpersuasive if counsel makes a mistake or misrepresents fact or law, just as in the written' briefs.' It's unpersuasive if counsel is asked a pertinent question and can't seem to find a good answer.' Some justices will go after an attorney under those conditions.' My approach usually is not to -- although I do sometimes, but usually not to because I form the' conclusion at that point that if the counsel can't make a better answer to that question there isn't a better answer and that that's why they didn't say something.'

Sometimes, too, it's unpersuasive, if you like, for' counsel to miss important points that they really ought' to be making.' One wonders why they're not picking up' sometimes on points that are so obvious and needed, and' even sometimes when questions from the bench hint at the need to do it.' One mistake I've seen many less' experienced attorneys make is to misread a question and' assume that it's a combative question when in fact it's' really meant to encourage them to make a point they haven't made and ought to be making.

OCJ Blog:' And what suggestions do you have for a practitioner hoping to make a winning oral argument to the Court'

CJ Kelly:' Well, I'd suggest that they certainly be accurate in' their presentation, that they stay on message even' though they're questioned lots of times so that they' make sure they get their points out before they have to' sit down, and that the time they get before us they have a clear view of what the linchpin is of their issues and that they have a vision of how the result they're' seeking will shape the area of the law that they're arguing about.

OCJ Blog:' How often does oral argument change your mind about a case's outcome'

CJ Kelly:' It changes my mind, and it changes other judges and' justices' minds, too.' I can't tell you how often, but' the fact that it does sometimes is enough to make it' important, in my view.' And I can scarcely tell you the' number of times that I've come off of the bench and' heard another justice or judge say to me, You know, I' went in ready to vote for the petitioner, and I came out on the other side.' So there can be no question but that the oral argument had a huge outcome on the -- a huge impact on the outcome of the case.

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