13.5.1 INTRODUCTION
Although your introductory material should be short (often less than a minute, and always less than two minutes), the introduction fulfills several important functions. A good introduction tells the court what is happening procedurally — who you are, who your client is, and what your client wants; it provides sufficient factual context, it outlines the argument and tells the court why you are asking for the result that you seek, and it grabs the court’s attention by focusing the court on your theme.
As always, you must be aware of local rules and local practice. In some courts, you may be asked to “enter an appearance on the record” before either party begins the oral argument. If so, you will stand (as you should whenever you address the court, or the court addresses you), and state your name, your law firm, and the party you represent. The party speaking first may be asked if he or she is reserving rebuttal time. If you enter an appearance in this way, you may or may not be expected to take time in your formal presentation to restate your name and your client and to reserve rebuttal time.
Traditionally, advocates begin their arguments by saying, “May it please the court,” although “Good afternoon, your honors” or any other respectful greeting will probably be acceptable to most judges.21Of course, you should review local rules to see if they require any particular opening, and, whenever possible, you should observe some arguments in that court before your debut so that you can learn the court’s customs. In the United States Supreme Court, for example, advocates never introduce themselves, and they traditionally begin their arguments by addressing the Chief Justice directly, saying, “Mr. Chief Justice, and may it please the Court.”22
However you begin your argument, you should never start without having the attention of the Judge, or, on a multi-judge panel, the Chief Judge or Justice.
This requirement may mean that you have to wait a moment while the judge finishes with note-taking from a previous advocate, but the benefit it provides in professionalism is well worth any cost in time. Just stand at the podium and wait in silence for the judge to nod at you or to give you some other signal telling you to begin. Do not take notes or review your notes while waiting, because you want to be able to pick up on either verbal or nonverbal signals as soon as the judge is ready.If you are the petitioner or the party supporting the motion, you may need to reserve rebuttal time at this point. The manner for reserving rebuttal varies from court to court. In the United States Supreme Court, for example, you do not set aside rebuttal time; you simply make your best effort to end your argument while you still have time remaining. In other courts, you may reserve time by speaking directly to the bailiff. In some courts (and in many competitions), the best practice may be to both request time from the bailiff and make the request orally from the podium. Section 13.7 provides more detail on preparing and making the rebuttal argument.
Your next task is to introduce yourself and your case. Judge Wiener has recommended opening with “a short, simple introduction: tell the panel your name, the name of your client, your client’s role in the appeal... and in the trial... but refrain from blowing a lot of ‘smoke’ at the court.... Begin your presentation with a short, attention-getting ‘simple and direct’ introduction of the points you plan to make.”23Judge Williams has warned that the only uninterrupted time most oral advocates will have is at the beginning of the argument, and that they must use this time “to succinctly present the issue and explain to the court the most important reason why [they] should prevail. [They] may wish to use this time to give an outline of the points” to be covered during the argument.24
Many advocates spend too much time providing factual context.
An oral argument does not have a formal statement of the case the way a brief does. You can presume that the court has read your brief and the relevant record materials. The Internal Operating Procedures of the United States Court of Appeals for the Third Circuit, for example, require that briefs and appendices be “distributed sufficiently in advance to afford at least four (4) full weeks’ study in chambers prior to the panel sitting.”25Rule 1.2 lays out the “Responsibility of Panel Prior to Scheduled Sitting,” noting that “[t]his court has the tradition of carefully reading briefs and reviewing appendices prior to oral argument or conference.”26Most advocates can give enough factual context simply by articulating the issue. In the rare situation where more factual background is necessary, try to spend no more than one or two sentences on these facts. Ideally, the court should not even realize that you are laying out facts; if it does, it should do so only at the moment you move to your argument. Of course, later in the argument, you should discuss facts in detail as they relate to your points or in answering questions; in the introduction, however, you must be succinct.
Presenting a roadmap of the points you plan to cover has two advantages. First, it gives you at least one opportunity to make those points. With some “hot” courts, that opportunity may be the only one. Second, a roadmap provides the obvious benefit of telling the court the points you plan to address and the order in which you plan to address them. Some courts will let you proceed with your argument if you have named the points that the court is interested in; if you do not provide a roadmap, on the other hand, the judges may interrupt quickly to make sure that you discuss an issue that has provoked their interest. You should not state the points in your roadmap objectively (e.g., don’t say, “First, I will address whether the statute passes the heightened scrutiny test”).
Instead, state your points argumentatively, and use the roadmap to explain why you are asking for the result you seek.If you are the first speaker, you may wish to grab the court’s attention in the manner in which you describe the case or in your roadmap. Although you should not be overdramatic, you can be argumentative. If you are the respondent or the party opposing the motion, you may wish to grab the court’s attention by referring specifically to a question that one of the judges asked of your opponent and explaining its significance to the case. There is no formula for what you should say to grab the court’s attention. You must review your case and decide what aspect of the facts, the law, or your argument epitomizes the injustice you seek to have corrected. This is the time to exploit your argument’s theme. Identify the commonsense reason why the court should decide the case in your favor.
If you must provide information about your name, your client, and a request for rebuttal, you may believe that the opportunity for an attention-getting opening is lost, but that is not necessarily true. Once you finish this logistical step, simply pause for a brief moment. Just as white space provides a position of emphasis in a written presentation, a pause provides one in an oral presentation. You should use the pause sparingly, but it can be an effective way to separate mundane identification information from the substance of your argument. If you believe that the issue is complex, and that the court needs some legal, factual, or procedural context before it can grasp the crucial point of your argument, move the dramatic statement of your thesis — and the pause — accordingly. That is, identify yourself (if needed), provide needed context, and then pause before stating your thesis in a dramatic way.
The sample introduction below is from a petitioner’s argument in Miller v. Albright, 523 U.S. 420 (1998). Note that the advocate introduces herself, asks for rebuttal time, tells the court what she is asking it to do, pauses before describing the case in practical terms, and outlines the points that she will address in the argument:
May it please the Court, I am Glenda de Guzman, and I represent the petitioner, Ms.
Lorelyn Penero Miller. At this time I would like to reserve three minutes for rebuttal. Ms. Miller, who was the plaintiff below, is asking this Court to reverse the decision of the United States Court of Appeals for the District of Columbia Circuit. That court upheld the constitutionality of 8 U.S.C. Section 1409(a), which governs the citizenship of children born outside the United States to unmarried parents when only one of the parents has U.S. citizenship. Section 1409(a) distinguishes among these children based solely on the gender of the child’s citizen parent. [Pause.]Section 1409 (a) wrongly uses an irrebuttable gender stereotype to put a time limit on the relationship between a father and his children. This Court should find Section 1409(a) unconstitutional and reverse the decision below for two reasons. First, Section 1409’s requirement that only fathers prove a close, personal relationship before their children can be declared citizens is premised on overbroad generalizations abut the relative capabilities of men and women, and thus violates the standard that this Court laid down in the VMI case just last year. Second, even if this Court should apply a less stringent test, Section 1409(a) is still unconstitutional because its concern with unreliable proof of paternity is neither facially legitimate nor rational in 1997.
Using the Theme of Your Argument
Trial courts and intermediate appellate courts must follow the mandatory decisions of the Court(s) above them. Courts of last resort, however, and other courts deciding cases of first impression, are more likely to consider the impact that their decision will have on real-world situations.
Accordingly, you must know the commonsense reason behind what you are asking the court to do. Why
would a decision in your favor be fair or just? In the case of Miller v. Albright, counsel for the young woman seeking citizenship could focus on the inherent unfairness of gender stereotypes or on the problems with imposing an arbitrary time limit on father-daughter relationships.
Counsel for the government, on the other hand, might focus on Congress and the importance of respecting Congress’s decisions in certain limited areas of law.The theme is particularly important in oral argument. Having a theme in mind can help you keep the court focused on the reason for a decision in your favor. Frequently, when questions have led you away from the point of your argument, you can recover by returning to your theme. This does not mean that you can avoid answering a question. Instead, answer the question, and then remind the court of your theme. For example, if counsel for the government were asked about the irrebuttable gender stereotype in the statute, he or she could provide a substantive answer, but then say, e. g., “this Court has never examined this type of claim in an immigration statute, because the Court defers to Congress in this area.”
In other words, a good theme is a statement that is true even in the face of your opponent’s best point. A theme is not a statement of how a legal rule applies, because the court may accept or reject a statement of this type. Instead, it is based on why the court should apply the rule in a certain way. In the Miller v. Albright example, both themes are true: The Supreme Court has traditionally deferred to Congress in the area of immigration law, and gender stereotypes are inherently unfair.
Identifying and using a good theme gives you somewhere to “run” when you must concede the existence of a negative fact or legal precedent, and helps you to refocus the court’s attention on the equities of your case.
In the second paragraph, the writer identified her broad themes: The statute should not use irrebuttable gender stereotypes, and it should not impose an arbitrary time limit. Before making this point, she identified the issue that the court is being asked to decide, and provided legal, procedural, and factual context. After stating her themes somewhat dramatically, she provided a roadmap that laid out the legal support behind these themes and told the Court the order in which she plans to proceed.
The respondent need not ask for rebuttal time and can spend much less time introducing the case. The Court should have any needed context thanks to the first speaker’s argument.
The respondent should, however, strive to grab the court’s attention by showing that he or she is “responsive” to the court’s concerns. For example, a respondent representing the other side in the case of Miller v. Albright might begin the argument as follows:
May it please the Court, I am Bradley Walent, and I am counsel for the Respondent, Secretary of State Madeline Albright. [Pause.] A moment ago, Justice Vargo asked counsel for Petitioner whether Section 1409(a) is or is not an immigration statute. Your honors, that question is at the very heart of this argument. This Court has consistently refused to interfere in Congress’s decisions about immigration law, and this case is not the time to start. This Court should affirm the decision of the District of Columbia Court of Appeals precisely because Section 1409(a) is an immigration statute, and this Court has traditionally applied a deferential standard when reviewing federal immigration legislation. Furthermore, under that deferential standard, Section 1409(a) is facially legitimate, and it is rationally related to Congress’s goal of promoting close, early family ties with U.S. relatives.
Although the respondent’s attorney above did not use a traditional “first, second, third” roadmap, his introduction revealed his theme (deference to Congress), the two points that he planned to make, and the order in which he planned to make them: First, he planned to address the requirement that the Court use a deferential standard; second (“furthermore”), he planned to explain what happens when that deferential standard is applied.
The introduction will take up only a small percentage of your argument time, but you should plan it carefully so that you can obtain optimal benefits.