By Dr. Ken Broda Bahm:
A lot can happen in fifty-two seconds. In last week’s historic oral arguments before the Supreme Court on the Constitutionality of the President’s healthcare reform, the Justices allowed an unprecedented six hours of oral arguments. While still not appearing on television, the Court allowed the next best thing: same day access to transcripts and audio recordings. Some Americans tuning in to the phenomena of oral argument for the first time might have expected long and impassioned legal rhetoric from the lawyers while the judges listened. The reality: not so much uninterrupted speech time.
Fifty-two seconds is the average amount of time a lawyer was allowed to talk at the start of his argument before being cut off by a judge, out of the eleven oral arguments presented to the Court, not counting rebuttals. Oral argument isn’t always the decisive ingredient in a decision, and within oral argument it is far more important to answer the judge’s questions than to have a great introduction. Still, those first few moments and what the attorney is able to do with them can be very important. As Bryan Garner and Justice Antonin Scalia write in Making Your Case: The Art of Persuading Judges, “setting forth at the outset the full range of what you hope to address may induce the judges to make their questions more concise.” Taking a look at the eleven introductions from the healthcare oral arguments, this post examines a few examples and draws some lessons on what should be done in the sentences that come before the interruption.
Get to the Point Before Your Judge Interrupts
After downloading all of the audio and transcripts of the three days of oral argument, I listened to, read, and timed the eleven argument introductions delivered by seven men (yes, all men — as I’ve reported before, there still isn’t quite gender equality in advocacy before the highest court). The result provides an interesting snapshot of what some of the attorneys chose to do with the first few sentences. Chief Justice Roberts’ advice from the Bryan Garner interviews is that “you want to convey exactly what you think the case turns on and why you should win . . . so they understand right from the beginning.” But upon analyzing these eleven introductions, I noticed a few different approaches to the question of what you should say right after “May it please the Court.”
Importance: One approach was to begin by emphasizing the importance of the hearing itself. For example, Donald Verrilli began the government’s first presentation on Monday with an emphasis on the questions “of great moment” that the Court would be addressing. It stands to reason to stress what is at stake, but the danger is that it speaks more to the public than it does to the bench, who could have responded, “With all due respect General Verrilli, if it wasn’t important this Court would not be addressing it.”
Position: Another common approach was to begin by announcing one’s position in the form of a thesis or theme. For example, Paul Clement arguing for the twenty-six states began Tuesday’s argument with “The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.” It is effective because it is short, punchy, and to the point, but for judges who are likely to be already well aware of your position, there is a third option that is probably better suited to oral argument at this level.
Issues: The third option is to use the opening sentences to frame the issues that remain after the briefing in order to identify the concerns you expect oral argument to focus on. This approach may be the one best suited to a situation where your decision makers are very familiar with the arguments and counterarguments of each side, but could benefit from the debate being boiled down to its central and essential differences. Within this approach, there is still the question of how detailed you ought to be. Using the metaphor of a building, you might think of issue identification as having several floors:
Ground Floor: This case is about whether the Affordable Care Act is Constitutional.
Second Floor: This case is about whether Congress can require an individual mandate as part of its power to regulate interstate commerce.
Third Floor: This case is about whether the government is regulating an existing market or creating a market in order to justify regulation.
Each level gains in sophistication and specificity. Depending on how mature the argument has become once you get to the point of oral argument, there may be many more floors as the distinctions between the parties rely on finer and finer points. The rule of thumb is this: Begin at the highest floor that includes your judge, or most of your judges. For a jurist well-steeped in the briefing and the case history, the lower floors can often be wasted words — the specific decision will be based on answers to the higher floor issues.
Looking back at the Affordable Care Act oral arguments, I think there is a lesson in comparing the longest and the shortest pre-interruption statements to the Court. The longest, clocking in at one minute thirty-two seconds, was Donald Verrilli’s statement at the beginning of Tuesday’s session on the individual mandate. I won’t quote his at length, but the points he made in order were that
– Healthcare is a fundamental and enduring problem in our economy.
– Insurance is the predominant means of paying for healthcare.
– Forty million Americans lack access to employer or government provided health insurance.
– For those individuals, the private insurance market doesn’t provide affordable health insurance.
– All told, these are large economic problems that beget other economic problems.
While supporters of health insurance reform may be nodding in sympathy, from the perspective of the court’s decision making, this introduction never gets off the ground floor of focusing on why the law is good. It does not get to the legal questions the Court will be basing its decision on. In the end, Justice Scalia sets all those concerns aside by asking “Why aren’t those problems that the Federal Government can address directly?”
In contrast, the shortest introduction was just fifteen seconds. However, that introduction, Paul Clement’s on behalf of the states in the Wednesday afternoon session, arguably got the job done. Before Justice Kagan cut it, Mr. Clement said “The Constitutionality of the Act’s massive expansion of Medicaid depends on the answer to two related questions: 1) Is the expansion coercive? 2) Does that coercion matter?” Not much, but it does frame the main issues for the ensuing argument.
Get to the Point, Then Welcome the Interruption
In emphasizing the advocate’s need to frame the argument before the judge cuts in, I am in no way suggesting that the interruption is a bad thing. As litigators well know, some judges will listen attentively and let you unpack a detailed argument, asking questions only as a kind of cleanup exercise at the end, and other judges will engage you in a dialogue almost from the starting gun. The latter is sometimes referred to as a “hot bench,” and the U.S. Supreme Court is arguably the hottest bench in the system. Rather than frustrating the advocate, however, the interruptions create an unprecedented opportunity. Before the passive audience, the advocate is forced to estimate what is important and to guess at what questions and counterarguments the decision maker has in mind. Before the active audience, however, that is all on the table and you have an opportunity to adopt to it, incorporate it, or challenge it. The hot bench, as I’ve written before, is a precious chance to wrap your advocacy around your decision-maker’s specific frame of mind.
When you are expecting that level of interaction, you know that the dialogue will play a greater role than the introduction. Still, give that introduction a serious amount of attention, and think about what you want to accomplish in the limited time you have prior to interruption. An oral argument will rarely cause a prepared and committed judge to change their opinion by one hundred and eighty degrees, but it can still make a difference. “It makes the difference” Garner and Scalia write, “because it provides information and perspective that the briefs don’t and can’t contain.” So approach those arguments with the knowledge that you’ll only be fully in the driver’s seat for about a minute, maybe less.
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Posts in the Supreme Court Series:
- Practice the “Three P’s” of Oral Argument: The Example of Paul Clement
- Aim Your Oral Argument at Your Judge’s Motivating Principle
- Oral Arguments: Cut In To Your Case Before You’re Cut Off By Your Judge (This Post)
- Don’t Let Your Judge Reduce You to Absurdity
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Other Posts on Persuading Judges:
- Build Unforgettable Briefs
- Avoid Lockout: Address Judges and Arbitrators Persuasively
- Avoid the “And Another Thing…” Style in Rebuttal
- When Faced With A “Hot Bench,” Keep Your Cool
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Photo Credit: Ivy Dawned, Flickr Creative Commons