13.3.2 GATHERING INFORMATION

After you have planned your argument, make sure that you know the case, the issues, and the relevant authorities well enough to answer the court’s questions. Although you should limit your prepared presentation to only two or three points, the court will probably ask you about other issues.

First, renew your acquaintance with the facts and procedure of the case. You should be able to answer the court’s questions about the details of any relevant facts and be able to tell the court where it can find certain facts in the complaint, the record, the decisions below, or the joint appendix. Make sure that you understand all of the details surrounding the legally significant facts; very often, these factual details can make a legal difference. In Bentsen v. Coors, for example, counsel for the Coors Brewing Company spent a bit of time at oral argument discussing the difference between beer and ale.¹⁴ Judge Wald has remarked that counsel’s familiarity with the record can play a crucial role in the argument:

The more arcane the subject matter... the more intimate with the record the advocate needs to be. All the questions of fact... that the brief may have raised in the judges’ minds will surface at argument, and nothing frustrates a bench more than an advocate who does not know the answers. Your credibility as a legal maven spurts as soon as you show familiarity with the facts of the underlying dispute.¹⁵

Similarly, make sure you know the procedural details of the case. The judges may rely on you to clear up momentary confusion about what happened in the courts below.

Second, familiarize yourself with all filed briefs and the authorities cited in those briefs. You should be able to tell the court the facts, holding, or reasoning of any significant authority cases, and you should be able to explain how your case is similar to or distinguishable from those cases.

Finally, and perhaps most importantly, figure out what you are asking for. What rule are you asking the court to create or apply? Do not be surprised if a judge asks you about this point directly. In both moot courts and real courts, I have heard judges ask, “Counsel, what rule do you want us to use here?” or “Help us to craft a rule, counselor. What would you have us do?”

In addition to knowing the rule you are asking for, you should understand the impact of that rule (and of your opponent’s rule) on future cases. Knowing the impact of a decision for or against your client will enable you to respond effectively to hypotheticals posed by the court. On a related note, try to anticipate what concessions you may be asked to make. For example, you may be asked to concede that the rule in the case applies to a certain type of plaintiff or defendant, or that your client has or has not met all or part of the standard your opponent espouses. You should know which points you would (or should) concede immediately (those that have little or no effect on your argument), which points you can concede if pressed by the court (those that are important to your argument, but that do not determine victory), and which points you can never concede (any point that would cause you to lose the argument).

Not all judges try to force counsel to concede either minor or significant points, but it is wise to be prepared for the ones who do. Justice Ginsburg has pointed out that “questions are sometimes designed to nail down a concession that will show up in an opinion, perhaps in a footnote that reads: ‘At argument, counsel conceded thus and so.’ That doesn’t mean lawyers should avoid concessions as inevitably damaging.

Judge Karen Williams, of the Fourth Circuit, has also cautioned that judges may ask questions that try to get attorneys to “concede away [their] case[s],” stating that counsel should listen carefully to questions that seek concessions, to ensure that “the judge has accurately restated your argument. The judge may be leading you down the slippery slope to an absurd result. At the same time, nothing hurts an advocate’s credibility with the court more than the failure to concede an obvious point.”¹⁸

Accordingly, be ready to be asked to concede certain points. Conceding obvious points helps your credibility. Admittedly, judges often lead counsel down the garden path, starting with easy concessions and working up to crucial ones. The best advocates know when to concede and when not to concede.

To sum up, at the end of your intellectual preparation for the argument, you should have a command of the issues you plan to discuss, the boundaries of the rule you are advocating, the concessions you are willing to make, the facts of your case, and knowledge of the cases and other authorities relevant to your argument and that of your opponent.