How to Prepare for Oral Argument

Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome,

Jeff Lewis  0:17  
everyone. I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience of trial attorneys and appellate attorneys some news and perspectives they can use in their practice. As always, we appreciate your referrals to other attorneys that you know if you find this podcast useful.

Jeff Lewis  0:35 
If you find it not useful, send it to your opposing counsel. Before we jump into this week's discussion, we want to thank casetext for supporting our podcast casetext is a legal technology company that's developed AI backed tools to help lawyers practice more efficiently since 2013. Casetext relied on by 10,000 firms nationwide from solo practitioners to M law 200 firms and in house legal departments. In March 2023. Casetext's launched co counsel, the world's first AI legal assistant, co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy and listeners of our podcast enjoy a special discount on casetext's basic research at casetext.com/calp. That's casetext.com/calp.

Tim Kowal  1:17 
Well, Jeff, we've been doing this podcast for over three years, over 100 episodes. And we've amassed a number of tips both from reading the discussing appellate cases and from our many illustrious guests on appellate oral argument, and we thought that we would try to distill some of the best tips and the recurring tips that we hear for this for a single podcast episode. And joining us today you you brought a guest in your studio, Jeff introduced

Jeff Lewis  1:45 
us, right? That's right, to keep it real, to keep us honest, and make sure it's practical, I invited my new superstar associate Kyla Deaton.

Kyla Dayton  1:52 
Hi, everyone, I was ordered to be here today. But nevertheless, I'm so happy to be with you.

Jeff Lewis  2:00 
And yet happy to be here. Yeah, Kyle's got an oral argument coming up in LA in a couple of weeks. And I thought this was a great opportunity to brush up on some, some tips.

Tim Kowal  2:08 
That's right, we're gonna we're going to stuff your head with a whole bunch of tips. Hopefully, you'll you'll forget them all. And it'll all become natural to you by the time you show up at oral argument. But Jeff, so here to start us off, just with some kind of top, top level, high level observations about oral arguments, some of the questions that I get most frequently from my clients. Jeff, are there on bookends of the oral argument? Question? It's either look, we've got all these additional great arguments and evidence, can we talk about them at oral argument? And I'd say no, the oral arguments very narrow, you can't talk about anything new or useful. That was not discussed in your opening brief. And then the corollary other bookend question is, well, then what good is oral argument? Can we just skip it? And I don't have to pay you to prepare for it and go to it? And then I have say, no, no, no. Nonetheless, oral argument is extremely important. And you don't want to waive it. So I'm always on any given day, Jeff, I'm either telling a client that it's really, really narrow, and there's hardly anything new, you can talk about during that argument. And yet, it's also really, really important, and you never want to waive it.

Jeff Lewis  3:09 
And what do you say, by the way, there's a third question I get asked, Should I go meaning I the client, should I come to oral argument? What do you say to clients who want to come to oral argument?

Tim Kowal  3:18 
I tell them, you, you may come you have a right to be there. But there is literally no reason for you to be there. You can watch it online, you usually you're gonna get a cold bench anyway. So you're just going to be listening to me telling you the same thing that I'm telling you now. Interesting.

Jeff Lewis  3:32 
I take a little different take, I tell the client, if I were the client, if I were paying this money for an appeal, I would absolutely go that said I give this speech to every client and 99% of the time clients skip

Tim Kowal  3:41 
it. They usually skip Yeah, well, yeah, mine, I'll skip it. But so we give them different advice. And yet the result is the same. Yeah, exactly. Exactly. All right. Well, here's another bit of another kind of top level advice that that I've remembered from one of our guests, Myron Moskovitz, who has been doing oral argument on appeal for a long, long time. And in his big tip is prepare for your oral argument early in the case, when you're doing your opening brief, you should have the theme for your oral argument already in mind. It shouldn't be just something you know, sprung out of your head at the last minute, you know, on the night before oral argument it'd be it should be something that ties your whole appeal and all your arguments together.

Jeff Lewis  4:21  
I have to say probably by the time of the reply brief, I have a pretty good idea after seeing the respondents brief, what the key issues are and where there's play and where there's gray area. I can't say that at the opening brief. I am entirely focused on oral argument. How about you, Tim? Well,

Tim Kowal  4:38 
I'm not focused on oral argument. But I think at least when I'm writing my conclusion, I always like to write in my conclusion, I tried to kind of kind of like lay a marker for myself. And here's what I think the key themes and issues are for the for the case and I'm going to lay that down in the conclusion of my opening brief. And you know, if I'm right, then it's going to be the same. It's going to tie together into my introduction and come to version in my reply brief, and then also in the oral argument, but sometimes as you say, the the respondents brief will take a different tack, and you'll have to adapt accordingly. You just never

Jeff Lewis  5:09 
know. All right. Before we get into like specific tips, Tim, I wanted to ask Kyla, you get ready for all argument next week. Do you have any specific fears or concerns or questions that leading up to the big day? Yeah, of

Kyla Dayton  5:21 
course, I think forefront in terms of fears is being asked a question and not knowing the answer. How do you respond to that?

Jeff Lewis  5:29 
Yeah. And with the caveat that neither Tim nor Jeff will be sitting right next to her to whisper in her ear.

Tim Kowal  5:35 
Yeah, you don't know the answer. I think a big, big one is are you the appellant or the respondent or a federal court? The appellee? Yeah,

Jeff Lewis  5:43 
and this particular one, she's the respondent, do you have a stock answer for or tactic or when you're asked a question that you have no idea how to answer. If

Tim Kowal  5:54 
I'm the respondent, and I don't know the answer. I feel a little freer saying, Your Honor, I confess I don't know the answer that question. But if the panel likes, I'd be happy to submit a letter brief. You know, when I get back to the office, before the court takes this matter under submission? Yeah, that's

Jeff Lewis  6:11 
a good one, or if it's important or material to the court's decision, I'd be happy to offer a supplemental brief on that issue. I haven't considered it before having considered it before today. That's a good one.

Tim Kowal  6:21 
And particularly if it is a it's a question that's a little bit out of left field, and it's not squarely in the issues that had been presented in the briefs. I think the court might be a little more receptive to allow you that leeway to do a supplemental brief because otherwise if the court rules basis, its opinion on some new issue that's not been addressed, then it leaves yourself open for a petition for rehearing, which they hate getting. So maybe they'd prefer to get a supplemental brief rather than a petition for rehearing.

Jeff Lewis  6:48 
Yeah, what if it's the kind of situation where it's squarely within the pleadings, and either you're having a senior moment because you're old like me, or you're having an associate moment, because Kyla, you know, has been assigned the case by a senior lawyer and doesn't know the record as well as possible? What do you do if you're asked a question you don't know the answer to and it's well, within the four corners of the issues already briefed? Well,

Tim Kowal  7:11 
that's tough. But I think you do have to be honest with the court, I think probably a natural reaction would be to, to try to segue into something that you do know the answer to answer a question that you that you wish the panel had asked instead. And I think the panel would hate that. So I think you do want to be forthcoming with the panel and say, Your Honor, I'm sorry, I don't know the answer to that question, then you offer to to provide the answer another way.

Jeff Lewis  7:37 
Yeah, I think this has happened to me once before and an appellate argument, I think the the where I was asked a direct question. I didn't know the answer. And it wasn't some new issue. And I think what I said at the moment in a moment of panic was the honors. I think I'll rest on the briefing. I think the briefing is adequate on that point. I'd rather than admit in open court that I didn't know the answer to the question. Yeah.

Tim Kowal  7:58 
Well, I think you could save some face that way. I don't know that the panel would like it. If the panel thought that your answer in the briefing was adequate. It probably wouldn't be asking you the question at oral argument, unless it was trying to throw you a softball. Maybe that's another thing to try to intuit from the question if the panel is offering you a softball, than to take it and run with it the best way you can. But if the candidate if the panel is asking you a pointed question, where it is trying to think its way through the issues or your arguments, I don't think you want to punt you think you have to be you have to answer them squarely. Right. Yeah,

Jeff Lewis  8:31 
yeah. All right. So listen, before we get to the specifics of the day of what happens at oral argument, do you want to share with the audience or I can, what specific things you do in the weeks or days leading up to oral argument? Well,

Tim Kowal  8:44 
to answer that question, squarely, Jeff, what do I do? I reread the briefs. I typically I will, when I read if I'm the appellant then when I get the respondent or appellees brief, I make some initial notes, and I give them a put my hot takes, put them in my own file. And then usually when I go back and reread the briefs, I like to read my hot take first, because I figured out these are the questions that first come to my mind when I read the other side's brief that there's a good chance that the panel is going to have the same reactions. And so I want to make sure that whatever i However, I addressed those those points that I thought, Well, this was a pretty valid point that they raise, how did I respond to it? And then I tried to decide did I give a an adequate response to that? Am I satisfied with my own answer? And if any way, I think it's inadequate, I tried to come up with another couple of ways that I might try to explain it to the panel at oral argument. I think that's the best your best clue is that one of the benefits of appellate briefing taking so damn long is that by the time you get the other side's brief, you've probably forgotten all about your case. And so when you're reading their brief, it's like oh, that's that's pretty good. So you want to be able to explain why No, it's garbage. Right? Okay. All right.

Jeff Lewis  9:55 
I know for me when I when I get ready for oral argument, I try to at least three or two Few weeks beforehand, I'll use a software similar to case text or case text itself for running through all the briefs to make sure that all the laws are still good. And that all the cases that we've cited are still good, because I want to give myself plenty of breathing room to tell the court about any new authorities, because we can't tell the court of appeal any bring up any new authorities that aren't in the briefs. And by the way, so if you get your opponent doing that, before you speak, so it's good to remind the court Oh, that's not a case that was cited in the briefs, I would welcome the opportunity to offer a supplemental brief on that issue. Yeah. So that's a couple of weeks ahead. And then, you know, maybe a week ahead, I like to draft a summary of the key cases and the key, factual, the key facts with record citations. And then couple days ahead, I'd like to distill that, reduce that to a couple pages, and contemplate the hardest questions I could get. What is the question that keeps me up at night, but I'm worried about getting, and then when I'm about 24 hours away from argument, I like to finalize, at least what my opening remarks are, what I can say before, I'll get cut off by questions. And then having everything else kind of in segments under a heading of, you know, by issue, so I'm ready to pivot to questions if need be. So that's my process. Yeah.

Tim Kowal  11:15 
And And along those lines, Jeff, let me let me offer a couple other perspectives on how to prepare for oral argument in preparation for this episode, Jeff, we posted on LinkedIn that we were going to be recording this episode on the subject of oral arguments and how to prepare for oral argument and how to effectively give oral argument and we got several excellent responses and on the subject of how to prepare. Here's a comment from Glenn Danis. He says make for outlines. He said many, many years ago, I read Carter Phillips suggested plan for oral argument. And and Glenn has stuck with an ever since and that plan is make four short outlines while preparing the first is a long argument outline. The second is key statutes and rules. Third is key cases. And four. The fourth outline is likely questions that you're going to get from the panel and then work through the outlines as you prep shortening the argument outline as you go until on the morning of the argument, you have it down to a nice single

Jeff Lewis  12:10 
page. Yeah, you know, let me ask you this as part of that process. Have you used chat GBT since we had that one interview with that one guest about using chat GBT or argument

Tim Kowal  12:21 
about asking chat GPT to please anticipate the questions. The panel is going to ask me about this case. Yeah, I haven't. Yeah,

Jeff Lewis  12:28 
yeah. I have as an exercise. I can't say I've actually done it for a particular case. But after that episode, after that interview, I went into chat GBT and I said hey, I represent such and such person and a slop case. And I these are the issues. Would you please conduct an oral argument? I am the respondent. And then what follows is a question and answer with chat. GBT. Now, chat GBT is not up to date in terms of its database. It's not a legal database. But it does raise interesting questions that kind of get your juices flowing your brain in terms of what other good questions could be asked by the appellate justices?

Tim Kowal  13:02 
Yeah, yeah, I think it's it's a poor man's way of mooting your case, if you can afford to find three other attorneys and pay them their hourly rate to sit through and ask you listen to your case, read all your briefs, and then ask you questions that you might get from the panel. And it may be a good way to go.

Jeff Lewis  13:19 
And one other wrinkle you know, chat, GBT just recently by the way, chat, GBT is not a sponsor of our program, but they should be. They just added a a verbal component where you can speak to your phone, it'll hear you kind of like a Hey, Siri kind of a thing. And it will verbally respond. So instead of typing in all this stuff and reading it, you can with your cell phone, have a Moot Court argument with your cell phone using chat. GBT. It's fantastic.

Tim Kowal  13:43 
Okay, that's something to try out. Attorney John Nielsen also mentioned, to make a cheat sheet when you're preparing for oral argument. Yeah. And in his outline, he puts the record cites and case and statutory support for each point that way, if the panel ever asked you where is that in the record? Or what is the authority that supports your argument, counsel, you have that at the ready, just in case you don't have them memorized?

Jeff Lewis  14:07 
Let me ask you this in terms of having them at the ready when you go to oral argument in person. Do you have one page? Do you have index cards? Do you have an iPad? What is your go to thing that you have in your hands when you go up to the podium and or in in person argument?

Tim Kowal  14:21 
When I go to the podium I have an outline. That's that's usually you know, I tried to keep that to a page or sometimes it's two pages. And I try I try not to not to use it or we refer to it. I try to have it mostly memorized not because I want to read from it as a script because that's that's highly frowned upon. We talked with with one of our guests about who mentioned that there was a Supreme Court case, this was Adam unit kowski, who related the story when the Supreme Court stopped an advocate in the middle of oral argument and said, counsel, are you reading this? As the sort of underscore that the court has solicited on Number of your briefs has read a lot of a lot of pages of your legal writing. They don't need to hear you recite your, your what you've written, they can read it just fine. They want to hear how you present the case extemporaneously not reading from a script. Yeah,

Jeff Lewis  15:15 
I guess so I think that worse than read from the script would be actually reading from the briefs. That would be Kyla and I just exchanged me for look suggesting that she's not going to do any reading during her upcoming argument.

Kyla Dayton  15:26 
I would never.

Tim Kowal  15:28 
So that's one of the fine lines you have to walk and oral argument is you want to be you want to be very prepared. You want to know your case, cold, but you don't want to sound canned. Yeah, yeah.

Jeff Lewis  15:40 
But you want to sound prepared. You don't want to sound like you're winging it. So

Tim Kowal  15:43 
yeah, yeah, that's, that's the difference. To be prepared without being canned.

Jeff Lewis  15:47 
Yeah, I gotta say, you know, we've had a few guests on our podcast that talk about going up to the podium, without any crutches without any props, no index cards, nothing. I can't imagine not having a crutch. So I always at least have my iPad with searchable PDFs and all that. Or, if I don't have it together enough to prepare something on my iPad, I'll have a physical notebook with one page at the top with summaries of the key points I want to make. And then in the back of that, maybe some annotated brief pages with the good stuff.

Tim Kowal  16:16  
Okay. Okay, good ideas for what to have. So you're an iPad person, I bring a binder with me, I don't bring it to counsel table. But I bring the binder just in case, there's something that I'm thinking of, as I'm waiting for my case to be called. And I need to frantically you know, look at one of the other documents to remind me what it says in there. But I feel sometimes that it can be a liability. When you bring your entire case with you, it tends to make you nervous that you need to be, you know, nose deep in that binder until your case is called and then you tend to freak yourself out. Well,

Jeff Lewis  16:47 
yeah, look, in the old days, you could tell the difference between the trial lawyers and the appellate lawyers in that courthouse when you showed up with a binder and trial counsel would show up like with an associate and six boxes of entire trial record, and they bring that up to counsel table. Like really? You're gonna go through that, I guess now with iPads. That doesn't happen too often. Yeah. Interesting. Hey, let me ask you this in terms of video setup, because there's still courts, such as in LA that does do video arguments. What is your setup for how you like your screen? Or what stuff do you have on the screen or available to you for video argument?

Tim Kowal  17:21 
What I have on my screen by way of like a virtual background? Is that what you're asking? Oh, no, no, I

Jeff Lewis  17:27 
imagine you have an amazing background. I was talking about like, do you have your notes up on the screen or physical notes? Do you have like the record up? What do you what do you owe? Like

Tim Kowal  17:34 
on my other monitors? Yeah. Yeah, I will just I typically just have the briefs and the will the appendix and the record in case I need to search those?

Jeff Lewis  17:43 
Yeah, I, yeah, I tend to have the PDFs of the of the record. In the briefs. I have my notes printed out because I'm always worried about a computer failure, or some glitch. And then I tried to position my notes on the screen relative to the camera. So when I'm reading my notes, not reading to the panel, but I'm reading my notes, it appears as though I'm intensely looking at the camera and paying attention and making eye contact with

Tim Kowal  18:11 
the justices. Yeah, no, I think that is important to try to try to make that eye contact and yeah, position your screen or position your notes, whatever you're going to be referencing while you're giving oral argument if you're going to be referencing a document. Yeah, have it but just under the eye of the camera. So it looks like you're looking at the camera and not somewhere else.

Jeff Lewis  18:30 
Can I ask you a dumb question, Tim, for oral argument or even for this podcast? Do you have a camera that like rests on the top of your monitor? Or is it flexible moves around? How do you have your camera?

Tim Kowal  18:40 
Yeah, I have something on an arm that I position, you know, just over the top third of my monitor. Got it?

Jeff Lewis  18:46 
Yeah, I like I gotta tell you, I kind of like putting the camera out of sight and out and covered when I'm not doing video stuff. So I like those arms. I don't understand the people that are just sitting there staring at that. Like, how 2000 from 2001 makes me nervous. Oh, where

Tim Kowal  19:02  
are you getting? So you turn it away from you during the day? Exactly.

Jeff Lewis  19:05 
Yeah, exactly. Yeah. All right, let's do. Let's dig a little more into the crowdsourcing you did for oral argument tips. When? What do you have next?

Tim Kowal  19:14 
Yeah, here's the next one. I have under the heading of anticipating the panel's questions. That's that's the big thing, right? When you go in there, you've got an outline, you've got some prepared remarks that you're going to present that you'll just run through start to finish in the event, you get a cold bench and no one asks you a damn thing and you're just you're up there talking and throw it in front of three, three statues. But if you do wind up in front of a hot bench, and they're asking you a lot of questions you want to have have in mind what kind of questions are going to be asking? That's the worst thing when they asked you when the panelists asked you a question and you thought, wow, I never never thought of it that way. I never thought of that question. So you don't want to be in that in that position. So here's a tip from Lindsay Lawton, former guest of the podcast, Florida appellate attorney for Former career clerk in the Florida Supreme Court's in Florida Supreme Court she says listen to the questions being asked of the other side. So so listen when the when your opponent is giving oral argument, and and they're getting peppered with questions, anticipate that you might be getting kind of the other side of the coin questions. So be prepared for that. And if you're the appellant, prepare your rebuttal. Don't think you can easily respond to the arguments that the appellee made in the moment, predict the best arguments they'll make and have a written rebuttal and adjust it if necessary. And as you're able, but it's good to go to go into a rebuttal with at least some idea what you're going to say just that it's good to go into your main argument that way. What do you think about that, Jeff, having having kind of a rebuttal plan, but having in mind, not only what the panel might might ask, but what your opponent is going to say and how you are going to dash it to pieces.

Jeff Lewis  20:53 
Yeah, be prepared to dash into pieces. Kyla, please, let me say this, I don't like to be ready to simply be ready to answer a question that was asked of the appellant if I'm the respondent. And I hear a question that was asked of the appellate and I think they flubbed it, they dodged it. Or it's just a helpful topic for me, I will without asking, waiting to be asked by the justice. I'll say your daughter's love to answer the question that justice so and so just asked my opponent in response to that question, I would say blah, blah, blah. And don't wait for the justice to ask you that. That's what I would do. Because I don't like giving my opponent the final word on anything. And when you're their spawn, and it's really tough. So that's generally my strategy is to listen for questions that are not answered, well be ready to respond. And if it's something that shows your appeal strength, affirmatively offer the answer to the question before being asked. Yeah,

Tim Kowal  21:44 
I like that. And then what about Jeff, when you are the respondent or the appellee? And the appellant has just finished their argument and you take the podium? Do you start right in with your with your outline with your prepared remarks? Right from the get go? Or do you if there were some interesting points that were raised by the other side? Or specific, especially if there were there was a colloquy between your opponent and the panel? Do you lead in, you know, try to just pick up where they left off to? To join that conversation?

Jeff Lewis  22:16 
Well, look, if I'm the respondent, and I feel like things are going poorly, or I feel like the other side scored points with response to certain questions, I will abandon my prepared remarks and jump into directly into those either questions or subject matters without a doubt.

Tim Kowal  22:32 
So it depends on on if the other side is put points on the board, then you're going to change your

Jeff Lewis  22:37 
plan. But let me ask you, I was just talking to Kyla before we started recording about the flip side of that. Suppose you're the respondent, and it's a cold cold bench. And no questions have been asked about the appellate appellant went up there clutching their outline, set a bunch of things. And the panel says next, and the respondent steps up, sometimes I'll introduce myself, and I'll say, if it's gone poorly, unless the panel has any specific questions, I'm prepared to rest on our briefing, and thereby deprive the appellant of any argument, any opportunity to argue or reply and salvage a terrible argument. What do you think about that? Yeah,

Tim Kowal  23:12 
and particularly if, if the appellant has reserved time for rebuttal? Yes. Is that a good strategy because then they've now they've wasted their token. They can't.

Jeff Lewis  23:22  
Yeah, every once in a while you get a savvy, either a very savvy or a completely unsavoury appellant's counsel, who will reserve those zingers for rebuttal. And if you don't have an argument, you know, the courts won't let you have two bites at the apple. If the responses. I'm good. Yeah, I

Tim Kowal  23:38 
do like that strategy, as the respondent just getting up and saying, Your Honor, unless the panel has any further questions prepared to submit on the record, I will have a very truncated outline, if I have just one or two points that I want to make in that event, and maybe just where if there are issues that I think I wonder if the panel might have any questions about this. So I'll just raise it. So I can ask any answer any questions that the panel might have. But otherwise, get up there and sit down as quickly as possible. I think that's the name of the game if you're the appellee, or respondent, and the other side hasn't put any points on the board.

Jeff Lewis  24:11 
Okay. But I gotta tell you got to be supremely confident in your briefing to do that. Or in reading the justices, if you see the appellant just getting shot to pieces, which happens sometimes. Yeah,

Tim Kowal  24:21 
but it's easier to do. It's easier to justify that approach when you're the respondent or the appellee, because you've already carried your burden of persuasion below. Right. You don't you don't have the burden of persuasion on on the appeal. It's the appellant who needs to be prepared to tell their story or tell their argument a few different ways in case it didn't go over the first time in the briefing. Yeah.

Jeff Lewis  24:43 
Well, I'll never forget I had one appeals crazy appeal where opposing counsel came in at the last minute. He didn't do any of that briefing and just came in for oral argument. He was the appellant. I was the respondent. He comes in. He had reserved 30 minutes for oral argument. He comes in, he comes up to the podium. He says Your Honors I'd like to reserve all 30 minutes for rebuttal. Whoa. And I step up to the podium and I say, I've got nothing to say. They almost they almost cut them off. But the panel took pity on him and asked him if you want to reconsider his time allocation. Don't do that. Okay. Yeah,

Tim Kowal  25:20 
that was that was almost a Hall of Fame oral argument, Jeff.

Jeff Lewis  25:24 
Tim, let me ask you this. Getting back to preparing for oral argument in LA. And I think also in Orange County, you get to reserve anywhere between zero and 30 minutes for oral argument. What do you put on that form? Usually, for oral argument,

Tim Kowal  25:37 
I don't think I've ever had a case where I reserved more than 15 minutes, sometimes, I have reserved as as little as five minutes, lambda. And sometimes I do seven minutes, or 10 minutes. If it's a fairly narrow case, you know, where I've only addressed really one issue and I, you know, brief the hell out of it. And I kind of think there's only so much more I can give to this case, before I make the the justices eyes glaze over. And I take to heart what the Justice beds worth is, has said about the attrition that the justices face when sitting through argument after argument after argument. And there make the council's making the same arguments over and over again. And, you know, so I tried to take pity on them. And if I don't have anything really new to say, then then I will keep my my remarks fairly brisk.

Jeff Lewis  26:23 
Yeah. Or I think it's just as bedworth who quoted justice, rather stand saying that when someone requested 30 minutes, my God was your briefings that bad? Interesting, I gotta tell you, I'm impatient. As I get older, I get really cranky and impatient. I don't like sitting through a whole calendar. And I find that most people, but 10 minutes down at the least. So I always reserved nine minutes, because you know, the Court of Appeal always does the shorter arguments first. If it's a case where I feel like I really want to understand how the panel is whether it's a hot bench or a cold bench, I might ask for more time. So I'm a little later, but generally, my go to move is nine minutes.

Tim Kowal  26:55  
Nine minutes. The Price Is Right rules

Jeff Lewis  26:59  
for I guess after this podcast, nobody knows my trick. It'll move to eight minutes. Yeah,

Tim Kowal  27:02  
yeah. Yeah. It's like, you know, what's better than seven minute abs? six minute abs?

Jeff Lewis  27:10 
Yeah. All right. Last question. I'll let you get back to your outline here in a second. My last question, Tim, when you go to in person argument, and you have the option of lowering or raising the physical podium, do you do that as a flex to your opponent? Or do you leave it as is? Do I do it as what to my opponent to flee? You know, as a flex to your opponent, you know, to raise it really high? You know, so they have to raise up? Yes, psychological warfare. Do you do that? I just leave it be.

Tim Kowal  27:35 
Oh, see. See, I must. I'm so much more guileless than you, Jeff. I had never even occurred to me to do that as a sort of psychological warfare. But but now you put it into my head, and I have to think about doing it. No, I'm almost six foot one. So yeah, I do usually raise it up a bit. But because I'm not relying on it, I don't want to show the justice as the top of my head the whole time. So I don't think I think of it as a big deal to to leave it down. My eyesight is not that great. So I need to, you know, if it's too close to my eyes, I

Jeff Lewis  28:05 
can't read it. Alright, next time. So I suggest you use your height to your advantage, raise it maybe a little more than you have to then when you sit down your opponent has to spend a lot of time lowering it to their height. Trust

Tim Kowal  28:16 
me. Okay. Is this something that you think about? This is part of your, your your oral argument, strategy workup? I have to tell

Jeff Lewis  28:24 
you after we've had so many appellate justices on the podcast attending MC leaves that say oral argument just simply doesn't matter. These are the things that I do to amuse myself

Tim Kowal  28:34 
to get some enjoyment out of it. But remember when we had justice Thompson on the podcast, and I think I had just just a few episodes before that related to the advice given by Justice bedworth In one of his comments or a plea given in his column, that it would be nice if there were more counsel who submitted and waived oral argument, and I thought, well, maybe I should do that if it really doesn't change things. But then justice Thompson said, you know that we kind of think lesser of you. If you waive oral argument that you must not really believe in your case. I thought, Well, okay, then I guess I'm not waiving any more oral arguments. Yeah, for sure. Okay, next tip, prepare to explain how new cases or arguments are not weighed. This comes up if you've if you if you're the appellant and you thought of, you know, some some great additional argument that you put in your reply brief or you think of a new argument that you want to raise it oral argument, be very careful that the that's when you're going to draw a question from the panel. Counsel, did you where is this in your opening brief? Oh, well, it's not really there. Your Honor. I just thought of it. I've had that day. Well, how can we possibly consider it if it hasn't been raised in the opening brace? So be prepared if you've got anything that hints that it's new, that hasn't been discussed in the opening brief, be prepared to explain how No, no, no, really, this is just another way of looking at the argument that I put in my opening brief.

Jeff Lewis  29:53 
Look at footnote 52. My parents reply brief where I fully developed this argument Yes. But all seriousness, Kyla, when you're the respondent, and you're worried that appellate may raise a new argument at oral argument, it's good to at least know the major headings in the opening brief in the reply brief. And if you hear something during oral argument that strikes you as new that wasn't raised below, and it's not one one of those headings, you can drop into oral argument. I don't remember that argument being raised in the briefs. Okay. And see if you throw that bone to the panel and see what they do with it, maybe a rebuttal. Okay.

Tim Kowal  30:27 
Yeah, yeah, maybe that can go back to your original question, Jeff, would at the panel ask you a question, but you don't know the answer to say, Well, Your Honor, the appellant didn't raise that argument. So I feel incumbent upon me to address it couldn't have worked

Jeff Lewis  30:39 
on it, they would have raised this issue.

Tim Kowal  30:43 
All right. Okay. Next tip. This was this is one of my favorite tips that we got from our second interview with MC Sungai. Let tell the court how it can decide the case in the narrowest way possible. And MCs tip here was, was her observation that advocates usually are looking for an outcome but appellate judges are looking to write an opinion. So we go in there Jeff is as an Kyla as the attorneys and we just want to vanquish our opponent. Well, you're a counselor, how should I rule? Well, for me, we win, they lose what what could be simpler, but they they need to, to come to an outcome that's consistent with the law, and that jives with other authorities. And if there are other cases out there that have holdings that that might kind of conflict a little bit, they need to be able to draft their holding in the narrowest way possible. So find a way that you get what you want. And your you get what your client needs, in the narrowest way possible. You know, we want to come out of there with published published opinions in addition to a win, but sometimes the published opinions or the big sweeping holdings are, you know, contrary to to our interests, because it is it makes the justices uncomfortable, and that you want to make the justices comfortable with your arguments and what you're asking. Yeah, yeah. Okay. And then related to that, you know, tell the court what remedies are available? If it's not just a simple case of money, if there's some equitable relief involved? Or if it's a more complicated type of case? Where is it going to go back for a new trial? Do we just issue do you want us to enter the relief, right, in the opinion, what do we do? Sometimes the these cases are complicated. The procedural history is a little bit of a quagmire. And the court needs some guidance about how do we get this thing done? You know, that's, that's the courts prime directive in, in all these things is how do we get this case over and removed from our dockets? They want to know the cleanest way to do that. Yeah.

Jeff Lewis  32:35 
All right. You know, it's not just reversal or our firm. There's all sorts of middle ground. So in terms of remand with directions, etc. So educating the court if there's something besides the black and white of reversal or affirming, it's good to educate the court and give them options. Yeah.

Tim Kowal  32:52 
Okay, another another one of my favorite appellate and oral argument tips from one of our former guests, Justice Landon, said, Don't make too many arguments. And you should, if you have weak arguments, be prepared to concede them, because doing that will get you credibility with the panel. And the panel will always notice if you are just as Justice Lambton, put it running the loop again, and just going through your prepared narrative over and over again. That's why again, the Justice don't want you to reread your briefs. They don't want pre planned remarks. They want to know, you know, your authentic take on the case. And so if they if they take the time to ask you questions, it's because they want an extemporaneous answer and not a soundbite. And just as Landon also said, we always notice he recalled this his from his time on the Court of Appeal, we always notice when an attorney told the court which argument to focus on and he said, You'll show courage, if you acknowledge a certain argument is not your strongest, and you'll earn credibility when you pivot to the argument that is your strongest.

Jeff Lewis  33:54 
Right, right. So that I like in the context of an anti slap case, there's no no shame and say, Well, maybe that prong one argument isn't our strongest, but let's talk about prong two. Okay. Yep.

Tim Kowal  34:03 
Here was another tip from Justice Thompson in this is to respond to that catch 22 that we talked about at the beginning of our conversation, Jeff, that that oral argument, you know, that the catch 22 That that Justice Thompson recognizes is if the argument wasn't in your briefing, then needed to be in your brief, you can't raise it at oral argument. And if the argument was in your brief, then why are you just repeating yourself? So that's that's the trick of oral argument is, is being prepared without being canned without repeating yourself. So he says, You want to be what you want to come prepared an oral argument with a fresh spin on the case, not new arguments, but a new way of looking at the arguments or a new way of looking at the whole case,

Jeff Lewis  34:45 
or or looking at if you're really hard pressed to come up with something new. I always like to come up with the why, at oral argument, the public policy argument, you know, every appeal is the same. There was a trial error, and it caused prejudice, right? But then there's the war. Why should the Court of Appeal gets so excited that they take out the red pen and you know, sign in reverse? And so it's a great opportunity to introduce public policy arguments if this rule were the rule across the board, blah, blah, blah would happen, or this is why the legislature did blah, blah, blah, to talk about kind of real world world applications of what the court is doing in this quiet little dark room. Yeah,

Tim Kowal  35:24 
yeah, I think that's I think that's right. I think another way of doing it is if if in your briefing, you focused on the law, then the maybe emphasize the facts, and why why the facts and under the facts of the case, the outcome you're looking for makes sense. If you if you didn't, if you worked on the on the equity show how the law also supports it, or the facts just put it a little bit of a different emphasis than than what you did in the briefing just to make it look like a different presentation than then you've already covered in your briefs. Yeah. And

Jeff Lewis  35:52 
if you're a young associate who's going to argue a case that was briefed by another layer, it's very easy to give a fresh take as the briefs weren't yours.

Tim Kowal  36:02  
That's a good way to do it. Yeah. Ask ask an associate ask a colleague to you know, maybe take a look at your briefs or if they're generous with their time or if they're like Kyla has to do it. It's an involuntary because their boss told told her to do it, then you can you can get a fresh look at the case. Okay, a couple other tips. This one from Robert scone pellet attorney and in Florida, tell the court why you win give direct answers to questions. We talked about that. Don't fight hypotheticals. So if the judge gives you a hypothetical don't tell the court those are not the facts of this case. The court knows those aren't the facts of this case, the courts trying to think through the more abstract legal problem, Robert scoobo and continues have a poker face while at counsels table. So don't you know don't don't make you know, nasty faces or

Jeff Lewis  36:51 
roll your eyes?

Tim Kowal  36:52  
Yeah, Don't roll your eyes and Tyler

Jeff Lewis  36:56 
are both very expressive people. And

Tim Kowal  36:57 
don't go up to the podium with a binder. You bring that binder, leave it at counsel table, just take up your one page outline if you need it, if you need your crutch. I'm

Jeff Lewis  37:06 
going to veto that. I'm gonna say if you don't have an iPad, there's nothing wrong with kemenah skinny, at least a skinny binder. You don't need 10 volumes with a trial record. But yeah, at least a something.

Tim Kowal  37:17  
Okay. Next one. Chris Chanda vole, who was on our podcast as well says, here's the big one for me. When you get a question from the bench, start by answering the question as directly as possible, then and only then explain your answers to many attorneys who tried to flip this order of operations, especially when they get tough questions. And they try to pivot and give a long conditional response. That only ends up frustrating the panel. Yeah,

Jeff Lewis  37:45 
if there's anybody more cranky and impatient at oral argument than me, it's the appellate justices who have to sit through a long calendar. They want to hear yes or no. But and then you move on to make your point. Yeah.

Tim Kowal  37:59  
Another tip offered by Brian Ginsburg says, here's, here's one thing to come prepared with an oral argument or be prepared to answer the question, what is your rule? So if you're coming up with a, like a statutory interpretation type of argument, or you have to have to reconcile different lines of case case authority, be prepared to answer the panel's question, what is your rule for how we decide this case? How we interpret the statute, Brian Ginsburg puts it particularly in cases involving disputed issues of statutory or constitutional regulatory, regulatory or even contractual interpretation, be prepared to succinctly answer the inevitable What is your rule question? Unless the text is so clear that all you need to do is repeat it verbatim? You should have an articulation of your reading at the ready. Yeah, yeah, I think that's good. That's good tip. Yeah. Along the same lines, John's a core says, Be prepared to answer what is your best case? One, one question. I've seen many attorneys fumble have a good answer. If asked, What is your best case? Or which case is best for your side?

Jeff Lewis  39:04 
I think that's a great preparation question. And what is the best case? What is the worst case? What's your opponent's best case? And worst case, I gotta tell you, I've never been asked anything remotely close to that in oral argument. But I think it's a good tool for preparing the

Tim Kowal  39:17 
next one to more Stuart Milch. His advice is basically just be a friend of the court, be a help to the court. He's Stuart Mill says it's kind of like the book about learning everything you really need to know in kindergarten. I think what trips many people up are the simple things, introduce yourself. Be polite. Look at the judge who asked you the question. Don't interrupt or speak over a judge. And if you're out of time, and the judge asks a question, ask the presiding judge for permission to answer and they'll they'll always let you but it shows deference and respect. And I think the corollary to that is that you know, just be a friend of the court, you are there to be a help to the court not to allow you to grandstand not so that you can have another billing opportunity for your client. You are Are there so that the judge can help puzzle through the issues that you've presented in your appeal?

Jeff Lewis  40:05 
Let me ask you, Tim, on the subject of introducing yourself, may it please the Court or No, may it please the Court and just Tim Cole for the appellant.

Tim Kowal  40:14 
I just did. I just say typical for the for the appellant or respondent, I've given up on that formality. It never felt comfortable on me. What about you, you still do it? Yeah,

Jeff Lewis  40:24 
I am. I do do it. And so in certain cases, I can't say I'm aware of the Lewis rule, a principled distinction for when I use it when I don't, but sometimes I just, the moment comes to me, Kayla, you have full discretion to either use or omit that phrase, you will like

Kyla Dayton  40:40 
using it. Okay. All right.

Tim Kowal  40:44 
Okay, last one from Jay Johnson. And I put this under the heading explain it to me as if I'm hearing several other cases today. Jay has heard this from a Fourth Circuit Judge. Remember that even though you've spent vast amount of time preparing your case, your case is just one of four or sometimes more that the judge is hearing that day and one of 16 that week. So while the judges will know the facts and the law, you should be prepared for high level questions that may seem Elementary to you.

Jeff Lewis  41:17 
Yeah. Yeah, that's a good one. Let me offer one other point we didn't get to and that is, you know, as respondent I hate not having the last word, as a respondent, you know, you've submitted respondents brief and then the appellant gets last word with their opponents reply brief. I view oral argument as a respondent as an opportunity opportunity to present a oral sir reply brief to the appellants reply brief. So there any zingers that the other side put in the reply brief, I'd love to respond to those because otherwise, the Court of Appeals left with the reply brief is the last word. I can't stay

Tim Kowal  41:51 
on that. Yeah. Yeah. Great tip. Great tip. Yeah, you as the appellee, or the respondent use the oral argument is your SIR reply. Okay. And the other brilliant nuggets, Jeff, you know,

Jeff Lewis  42:01  
I had a question here, but I don't have an answer. Do you have any big war stories or nightmare stories? best or worst experiences and the Court of Appeal you want to share? Oh, no, I

Tim Kowal  42:12 
don't recall that. I have anything. That was very dramatic. I've seen counsel, I've seen. I've seen respondents counsel tried to reserve time for rebuttal. And being reminded that no, you don't get the last word. the appellant gets the last word. And yeah, raising arguments. I have been asked by the panel, the tip that I raised earlier came from experience about being prepared to tie in any new or novel arguments into an argument that you've already made in your brief and good because because that's that's come up with me at least at least once maybe a couple of times, where the where the judge and I thought it was it was it was pretty organically related to the issues in the case. But But I was I was discomforted by the panel's question because it made me realize that they are looking to just boot this one on a procedural on that procedural rule that Oh, it wasn't squarely raised in the brief so I'm so we're not even considering it.

Jeff Lewis  43:04 
I have one interesting story. It only comes up once in a blue moon. And that is you know, when watching soccer you know World Cup when there's a interruption the proceedings there's there's an overage or whatever, they got extra time they add two or three minutes the clock, right. There's no such thing in the Court of Appeal in my experience as extra time so I had an argument where is a super important case, and the other side was up presenting their argument. And there was a fire alarm the building, downtown LA and we had to evacuate. And we go back an hour later building was not on fire. Are you at resumed no extra time for stoppage. I was shocked. I was if I was the respondent, I would have been ticked off that I wasn't given extra time to reorient the justices and all that. So, note to self if your arguments ever interrupted for any reason, you're not going to probably get extra time.

Tim Kowal  43:54 
That is very surprising. Okay. Well, good to know. All right. And I want to know, Kyla, do you have any burning questions? What's What are the things that now after having sat through and listen to us talk about all these different oral argument tips? Are there any that surprised you? Or are there any any things that are especially concerning you about what, what to be expecting at oral argument?

Kyla Dayton  44:19 
Yeah. So in making the four outlines, focusing on key statutes for one of the outlines and key cases for the other, would you recommend going through the headings of, I guess, your own brief and outlining each of the key statutes and cases for your own briefing or for both sides of briefing to be prepared to speak on those?

Tim Kowal  44:40 
Yeah, I would say both sides, especially if the other side raised any, any good authorities that cause you problems. Yeah,

Jeff Lewis  44:48  
I would say though, omit from your notes, any discussion about the standard of review unless both sides have disagreed over the standard of review and omit from your notes anything about appealability to the timeliness of appeal? or whether it's an appealable order unless there's some dispute between the parties, but other than that, I think that's a good approach. Okay, great. Yeah. By the way, Tim, for the record, she took a full page of notes, so she was paying attention. Oh, I'll

Tim Kowal  45:12 
be that's that's, I think that's the most anyone's ever paid attention to our podcast.

Jeff Lewis  45:18 
You know, as a guest of the podcast kinda will be receiving her official, California appellate law podcast mug All right, I think that wraps up this episode, we want to thank casetext for sponsoring our podcast each week. We include links to the cases we discussed here from casetext daily updated database of case law statutes, regulations, codes, and more listeners in the podcast enjoy a special discount on casetext basic research and casetaxt.com/calp. That's casetext.com/calp.

Tim Kowal  45:46 
And if you have suggestions for future episodes, such as guests that we should bring on the podcast or topics we should discuss, please email us at info at cow podcast.com. And in the future, continue looking for more episodes on how to lay the groundwork for appeal and preparing for trial. Yep,

Jeff Lewis  46:04  
see you next time.

Announcer  46:06  
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest case is a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cal podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again