Should you ask judges if they are familiar with your case?
I was in a conversation with some other litigators when this question came up: What’s the most polite way to ask judges whether they’re familiar with the briefs or would they prefer if I summarize the facts and issues for them at oral arguments?
Well, I wasn’t going to pretend to know the answer. I’ve argued my share of motions over the last six years with varying degrees of success, but oral arguments aren’t my strong suit. So I put my historian hat back on and decided to go find some primary sources to answer the question.
There is no more readily accessible place to find judges and experienced lawyers willing to share their wisdom and preferences than Twitter, which is exactly where I went to find the answer to the question of whether to assume the judging you’re arguing before knows the facts of your case.
These are responses from appellate judges:
Chief Judge Stephen Dillard of the Court of Appeals of Georgia (@JudgeDillard): “You should presume that the judge (or judges) have read your brief. If you aren’t asked any questions out of the gate, quickly frame the issue and then lead with your strongest argument. If it’s a cold bench, make your key points and sit down.”
Justice Jerod Tufte of the North Dakota Supreme Court (@JudgeTufte): “Tufte, J., concurring emphatically.”
Justice Beth Walker of the Supreme Court of Appeals of West Virginia (@bethwalkr): “We routinely instruct lawyers (politely) during oral arguments to focus on the legal issue(s) and assume we are familiar with the facts. Because we are.”
Justice Rhonda Wood of the Arkansas Supreme Court (@JudgeRhondaWood): “That is right! If you are spending time on the facts, you are 9/10 wasting valuable time.”
Among trial judges, I got these responses:
Alabama Circuit Court Judge John H. Graham (@LegalMoonshiner): “If it’s the first time there’s been a hearing on this particular case, counsel must assume the judge is fact-ignorant. But if it’s been there before, plow on into the law. The judge will tell you if she or he doesn’t remember the facts. And don’t forget that we have many, many cases, some with similar facts and names alike. I have, for instance, 1,497 active cases across 3 divisions … plus drug court. Sometimes it all runs together.”
Alabama Circuit Court Judge Jenifer Collins Holt (@JeniferHolt): “First, if the brief is lengthy, I recommend that you send a paper copy. Second, I prefer a summary in either event so no need to ask. Seeing and hearing the attorneys gives me a better feel for the dynamics of the case. If it’s a motion to reconsider, disregard both. :)”
Among the litigators, here were some responses:
Jason Thompson, Grayling, Michigan (@jrt219): “Start with your timed, uninterrupted presentation ready. If they’re silent, that’s relatively thorough with the facts, which is kind of their cue to move to questioning if they want to. If not, stay the course. And the way I would frame your question about facts is to always assume they’ve read it but may not recall each pertinent fact. So if it comes up on an issue, you’re asking if they want you to review the facts with them ‘again.’”
Jason Steed, appellate lawyer and blogger at Forma Legalis, Dallas (@5thCircAppeals): “In my [oral argument] last week, I started to answer Q about waiver by saying, ‘To help the court understand what happened…’—and judge said, ‘The court understands the case, counsel.’ (ouch)”
Raffi Melkonian, appellate lawyer, Wright, Close & Barger in Houston (@RMFifthCircuit): “Yep. Smack smack smack. I will sometimes say ‘let me give you some background that I think is important to answer that question’ or a similar thing if I think there’s a factual misunderstanding.”
Travis Ramey, appellate lawyer in Birmingham, Alabama (@bamalaw2011): “I’ve tried something similar to that and gotten: ‘What I’d like you to give me is an answer to my question.’ If the court decides it needs to hit you, it will. All you can do is roll with the hits, keep answering questions, and look for pivot points.”
Stacy Moon, shareholder at F&B Law Firm, Huntsville, Alabama (@StacyMoon02): “‘Your honor, would you like me to remind you of the facts at issue, or do you prefer we focus solely on the legal argument?’ OR—just start with the facts, and let the judge interrupt and move you on.”
If the judges and justices above didn’t make it clear, you have a limited time in front of your audience, so there’s something to be said for brevity. Here’s an example from the justice editor at ThinkProgress news website, Ian Millhiser (@imillhiser): “The best oral argument I’ve seen was ‘This case is before you on an abuse of discretion standard. Unless you think the district judge abused his discretion by finding that firing a gun into a building is dangerous, you must affirm. Unless there are questions, I’ll take my seat.’”
PARSING THE RESULTS
Courts have heavy caseloads. Trial courts have a tremendous number of cases they’re dealing with, and typically having numerous cases they are hearing in a single sitting or motion docket. While the trial court may have read your brief and be somewhat familiar with your case, judges Graham’s and Holt’s responses indicate you may be best served by briefly reciting the facts of the case for their benefit before launching into your argument.
Appellate courts, on the other hand, have the luxury of selecting the cases they’ll hear oral arguments for and decide. With a lighter caseload, appellate judges and justices have more time to spend with each case individually before hearing it, and the responses above indicate there is a uniform desire among them for lawyers to dive right into the legal issues.
As always, when deciding how best to approach oral arguments, know your audience and rely on your experience and training. If you don’t have experience in front of a particular judge, poll other lawyers in your office or community of lawyers. Be mindful that regardless of anyone else’s experience or the wisdom and preferences shared here, your mileage may vary.
Jeremy W. Richter is an associate with Webster Henry in Birmingham, Alabama, and writes an eponymous law blog. He is the author of Building a Better Law Practice: Become a Better Lawyer in Five Minutes a Day .
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