There are, however, questions from the bench that are definitely disconcerting and that serve no good purpose. Such are the questions that would never have been asked if the judge had read the brief. Next are the questions that admit of no answer. In the Chicago Water Diversion litigation years ago, Colonel J. Hamilton Lewis had just finished the arguments of his first point and time was running against him. As he was about to plunge into his second point, one of the distinguished jurists remarked, "But, Colonel Lewis, I don't think I quite understand your first point." The Colonel savagely brushed his pink whiskers upward and forward and in his remarkably metallic voice shouted, "Unfortunate, Sir, most unfortunate! My second point is . . . “
Even more subject to criticism is a running debate between counsel and a judge, for the very nature of their positions makes the contest unequal. Finally, there are questions, rare to be sure, where it is obvious that a judge is definitely endeavoring to thwart counsel's argument. Even then it is often better to suffer much rather than to make a retort discourteous. Not all of us have the wit to reply as one distinguished lawyer did a few years ago to a grossly improper question from the bench of the Supreme Court of the United States: "Your Honor, were I to attempt to answer your Honor's question, it would stand for all time as a classic example of the blind leading the blind." Questions from the bench call for as much skill and restraint as the answers from counsel. Rightly used, they can do much to facilitate sound decisions.
At what point should counsel answer a question of a judge? If the question is simple, especially if it is a fact question and can be dealt with readily without interrupting the train of the argument, it should be answered forthwith. Such a disposition of questions creates the best effect. On the other hand, if the inquiry is foreign to the point he is presently arguing and he can answer it better at a later point in his presentation, counsel should frankly say so, and then when he conies to that part of his argument he should expressly tell the judge that he is answering his earlier question. If approached in this way, the answers to questions from the bench can become the most stimulating part of the oral argument, but if counsel reflects any annoyance at being interrupted, either by voice or manner or the content of his reply, he will be doing his case unnecessary harm.
An able counsel has it within his power to curtail questions. Chief Justice Hughes, while at the bar, disliked questions. His biographer, Merlo Pusey of the Washington Post, has written that his remedy was: ... to present his case so clearly, so quickly, and so forcefully as to forestall any questions which might arise in the judge's mind before the question could be asked. That seems like a pretty large order, but he seems to have succeeded in many instances. Justice Cardozo told his associates on the Supreme Court that when Hughes appeared before him in New York, he always waited for twenty-four hours to make his decision to avoid being carried away by the force of Mr. Hughes' argument and personality.
Where the court is in the habit of asking questions, the advocate would do well to set aside at least a quarter, maybe more, of his allotted time for answering questions from the bench. Nothing can make counsel feel more harassed in the argument of an appeal than to have planned a presentation using all of his allotted time only to find that the court is asking a wide variety of questions, with the result that he will either have to omit a part of his argument entirely or abbreviate each and every part of it. Above all, the appellant should reserve at least a few minutes of his time for possible rebuttal of his adversary's argument. I have never been able to understand the ineptness of counsel who fails to do this; their helplessness and obvious agony is a pitiable sight to behold. Counsel, moreover, need feel no compulsion to use all his allotted time or to make a rebuttal argument, for rebuttal, like cross-examination, may be very dangerous. To be effective it must always be brief and on a telling point. The greatest advocates rarely exhaust their time. When they are through they sit down, much to the delight of the court and their waiting brethren at the bar. It is a great mistake, as John W. Davis has well put it, for counsel to think that he has a contract with the court to take his entire time.
Arguing an Appeal: Style
The earlier a young lawyer begins to get used to the sound of his own voice, the better for him. If he learns how to stand; if he knows just how much volume to employ in speaking, for too much voice is quite as bad as too little; if he knows how to pace his delivery, not so slow as to weary the judges, not so fast that his thought does not sink in; if he understands the importance of emphasis, derived not necessarily from raising or lowering his voice or by increasing or decreasing its volume but by means of a simple pause, he will find that he is far less likely to be nervous than if he had to get acquainted with all of these things in the courtroom when his mind should be concentrated on the single task of transferring his argument from his mind to the minds of the judges.
Forensic persuasion in an appellate court is a form of public speaking where moral earnestness and sincerity of manner command a high premium and where the slightest exhibition of artifice may destroy an argument no matter how sound its content may be. Gestures, at least planned gestures, would seem to be totally out of place. The advocate must never forget that his audience is likely to be as well versed as he in all techniques of delivery, and even more sensitive than he may be to any false note. Counsel should learn to stand up straight, balanced on his two feet, and to look the court in the eye. Nothing should come between him and the court. His summary should be in type so large that he does not need to be-forever putting on and taking off his glasses to read it.
The tone of voice that would be in keeping at a political rally or even in a large deliberative assembly is quite out of place in the appellate courtroom. The orotund quality and the accent of declamation are as foreign to a good argument as they are to a prayer. We frequently hear it said that the ideal voice for public address is the conversational voice, but the term is likely to mislead, if not, indeed, to be entirely misunderstood. The conversational style of public address that harks back to Wendell Phillips is the ideal he must master. It is never casual or thin, but always direct and personal. It requires no little art to talk conversationally using simple language yet with such intensity of purpose and such obvious elevation of thought as to carry with it the conviction that the speaker believes wholeheartedly what he is saying.
Always remember that there are no punctuation marks in an oral argument unless you put them there as you speak. There are no paragraphs in the courtroom unless you make your transition from one line of thought to another stand out as clearly as a pump handle. Avoid the use of such words as "former" and "latter." They are bad enough to encounter on the printed page when you can read back and discover-sometimes-what "former" and "latter" refer to, but you cannot do this when listening to a public address. You should likewise eschew at all hazards attempts at cross-references either forward or backward in your address. The judges just cannot follow you. Each sentence must stand by itself.
Much depends on a good opening. Counsel should plan and re-plan his first few sentences until he knows them by heart without ever having gone through the conscious process of memorizing them. If he can get his airplane oil the ground in the first minute or two, the battle of delivery will be half won. Throughout the entire argument, counsel must give the impression of complete intellectual earnestness and drive, while at the same time exercising self-restraint in word and manner. This in turn will reflect itself in the tempo of his delivery.
The time will undoubtedly come when his mind will play a trick on the advocate and for a moment he will not have the slightest idea of what he has been saying or what he wants to say next. There is an interesting passage in the autobiography of Andrew D. White, the great president of Cornell University, in which he tells how President Tappan of the University of Michigan advised him as a young professor, when he confessed his trepidation at delivering his first extemporaneous lecture, "Never stop dead; keep saying something." The summary of your argument, which is the only paper spread before you on the lectern, will quickly help you out of any such temporary embarrassment.
Another difficulty that frequently afflicts public speakers is the embarrassment of getting so snarled up in the involutions of a series of complex and compound clauses that they cannot find their way out of the labyrinth of a sentence they have constructed. This will never disturb an experienced speaker. He will break off when he is lost in the maze of his own words, saying, "In short," and then summarize his thought in a very brief and telling simple sentence.
Nor should the speaker be too much disturbed if occasionally he finds himself giving voice to sentences with plural subjects and singular verbs or vice versa. The thought is paramount; grammar a mere means to an end.
The speaker will be helped much by a proper attitude toward the court. Too much respect is as bad as too little. Your attitude should be one of restrained decorum. The seats on the bench are, or should be, arranged at such a level that you can look the court in the eye, looking neither up nor down. Counsel will do well to seem to address the entire court, while at the same time keeping his eye on the center of the bench. Sooner or later you will be attracted instinctively to some one particular judge without anyone knowing that you are addressing him especially, least of all the judge himself. You will find yourself preparing your argument with him in mind and observing the effect of your argument on him.
Listening to oral argument five hours a day is hard work even if you have read the briefs in advance. Accordingly, if you can give the court a fraction of an excuse for a passing smile, without, of course, seeming to lug your humor in, you will be doing your cause no harm.
Arguing an Appeal: Obstructions
It would be pleasant if one might tell the future advocate that the best way to get started on his career would be to go to court and listen to the argument of appeals. Unfortunately he would be more likely to acquire bad habits from what he sees and hears than good, for it cannot be gainsaid that, whatever may be said of the exceptional lawyer, in general lawyers' skill in oral argument has fallen over the last half century. It may be helpful, even though it may seem like constructing a chamber of horrors, to point out some of the more common obstructions that get between the advocate and the court.
Counsel should give some thought to how he affects the eye of the court. He would do well to remember that most judges, regardless of what their politics may be, are a bit conservative in matters of dress. The court sees counsel before it hears him. If he is dressed for the race track rather than the courtroom, the judges will form an impression that even a silver voice and the concourse of sweet sounds may never be able to blot out. Gone are the days of formal dress except for government officials in the United States Supreme Court, but counsel everywhere will still do well not to attire themselves in such manner as to direct the attention of the court away from their argument to their apparel.
Counsel should avoid what is technically called the quarterback eye, the habit of glancing up and down the bench as if looking for an opening in the enemy's line where he might break through for a touchdown. Another disturbance to the eye of the court, and hence an obstruction to counsel's argument, is the annoying habit some advocates have of waving a pencil at the court as if they were conducting an orchestra, at a moment perhaps when the court is endeavoring to concentrate on some intricacies of unfamiliar facts or a complicated question of law. There is another species of amateur advocate who poises his pencil in midair, generally in the line of vision, as if he were able to perform some feat of mental arithmetic. Pencil-poising stamps the offender as an office lawyer, most likely a conveyancer, who is out of his element in the court-room. There is, of course, nothing that compels counsel to make such a confession to the court and he would be much better off if he would keep his pencil in his pocket.
Counsel should respect the ear of the court as well as the eye. Do not pound the lectern, especially when a glance at the bench discloses that not a single justice is slumbering. Do not speak in an angry voice no matter what the provocation. There is no record of any appeal having been won by being ill-tempered. Nor does it ever pay to attack the trial judge whose opinion is being reviewed.
Do not toady to the individual judges. When you cite a case that one of the justices decided, you do not need to tell him that he wrote the opinion. He is either proud of the opinion or with the passage of time ashamed of it. If he is proud of it, he will assume that everybody on the court knows it; and if he is a bit ashamed of it as an early effort, he would prefer not to be reminded of it. Think, moreover, of the other justices who are not thus singled out for distinction. Above all, do not tell a judge that his opinion is a great landmark. Nor is it necessary or permissible to thank the judges for listening to your argument. It is their duty to do so.
On the other hand, there is little to be gained from needlessly offending the court. Only a few weeks ago counsel in all seriousness assured us that the decedent was an "infirm, old woman sixty years of age." He seemed quite embarrassed when one of my colleagues reminded him that the average age of the court he was addressing was well over sixty! Few of us would think it advisable to emulate Daniel Webster, who in the course of an argument in the United States Supreme Court paid his respects to the entire bench:
No one of the judges who were here then now remains. It has been my duty to pass upon the question of the confirmation of every member of the bench; and I may say that I treated your honors with entire impartiality, for I voted against every one of you!"
Counsel will be well advised not to do anything that will cast the slightest doubt on the thoroughness and the intensity of his preparation. What can the court think of a lawyer who requests permission to add to his brief some cases that he has discovered since the brief was written, when the cases in question have been in the books for many a year? Of course, decisions that have come down since the printing of the brief stand on a different footing.
Whether or not you tried the case or prepared the brief, you are arguing it and you must assume the responsibility for it. It is a sign of weakness for counsel to submit to coaching from his associates during his argument. The notes which are passed up to counsel by his associates in the course of an argument seem always to be either illegible or unintelligible. They require counsel to interrupt his argument to try to find out what they mean. They inevitably distract his mind from his argument and they are always the equivalent of one's junior saying to the court that the speaker is either not prepared or that he is incompetent to make the argument unaided. One great advocate issued binding instructions to his associates never to come to his aid unless he should pass out in a faint and then not to do so if the court was watching! Counsel should avoid telling the court that he is sincere about what he is saying. If his sincerity does not penetrate to the court through what he is saying and the way he is saying it, the bare assertion of his sincerity will only serve to cast further doubt on it.
