Appellate Oral Argument: What Judges Expect from Lawyers

Oral argument in an appellate court looks deceptively simple. The calendar says your case gets 15 or 20 minutes. You stand at a lectern. You talk. The judges ask questions. Then you sit down and wait for a decision that might shape an area of law for years. The simplicity is an illusion. In those minutes, an appellate lawyer either builds trust with the panel or spends capital they do not have. Judges can tell which one you are within the first minute.

An effective appeals lawyer respects the asymmetry of the setting. The panel has read far more appellate briefs than you have ever written. The judges know their docket, their standards of review, and the constraints on their authority better than anyone who will approach the podium. They also have limited time. What they want from an appellate attorney is rarely a re-argument of the brief. They want clarity, candor, and control. They want help deciding the case correctly and cleanly, consistent with precedent and the record. Everything else is noise.

What the bench is solving that day

A good argument begins by understanding the court’s job. An appellate court is not a do-over. It reviews for error. That sounds obvious, yet the most common failure in appellate litigation is treating the argument like a closing statement to a jury. The panel wants to know: What is the legal question we must answer to decide this appeal? What standard governs? Where can we find the fact you say is dispositive, and under what heading? What happens to other cases if we adopt your rule? Which outcome is faithful to the existing body of appellate law?

In practice, panels come to argument with a menu of options. They have sketched two or three avenues to decide the case. Each path carries costs. Reversal may unsettle trial management or encourage gamesmanship. Affirmance may create a split, entrench an error, or produce an unjust result. Narrow remand orders can fix process problems while avoiding broad pronouncements, but only if the record allows them. One judge may be exploring the practical line-drawing problems of your rule, while another worries whether your preservation posture lets the court reach the issue at all. You cannot address any of that by restating your introduction. You have to meet the court on its problem set.

Experienced appellate lawyers arrive with a theory of the case that blends law and craft. They can explain, in under a minute, the decision rule the court should adopt and why that rule fits the record and the law. They can adjust that pitch if the first question shows the panel is focused elsewhere. They know the record well enough to cite page and volume without breaking eye contact. Most of all, they are ready to concede what must be conceded with surgical precision, and no more.

The first minute matters more than the last ten

If you want to gauge how judges evaluate an appeals attorney, listen to how they react to the opening. Judges have read the briefs. Many have memos from staff attorneys or law clerks. Some have opinions in mind. Your opening answer can either confirm a judge’s framing, or invite recalibration.

There is no one right opening. But four elements almost always help:

    A crisp statement of the relief you want, tied to the standard of review. “We ask the court to reverse and remand for a new trial because the erroneous exclusion of the defendant’s expert was not harmless under Rule 61.” That tells the panel exactly what you want and why their lens matters. A short articulation of the governing rule you propose. Provide a sentence with verbs and nouns that courts can use. Judges often lift language from counsel when it is clean and accurate. One record cite that demonstrates how the rule resolves this case. Put the court’s attention on a concrete place in the record, not in the ether. A roadmap for the two or three core points you will defend. Anything more becomes a hostage to time and questions.

Time slips quickly. Most appellate arguments are “hot,” meaning questions start immediately. Do not burn your first minute repeating facts. Judges rarely need them, and they can signal you are not ready to engage. Ground yourself in the law and the ask.

Questions are the argument

When judges interrupt, they are not being rude. They are showing you where the decision will be made. The question has priority over your outline. The best appellate attorneys adapt in real time, answering the precise question asked and then returning to their theme. The worst plow forward as if delivering a speech. Panels notice. They talk about it in conference.

Answer directly. If the answer is yes, say yes, then explain. If it’s no, say no. If it depends, explain on what. Use concessions strategically. A smart concession increases your credibility and narrows the battlefield. A foolish concession gives away an element you could have fought. Knowing the difference is why preparation takes weeks for a 15-minute argument.

Judges also expect you to respect the limits of the record. Do not embellish a fact. If you cannot find support, say so and pivot to a legal point. In nearly every appellate court, one judge on the panel is the designated stickler for preservation and record accuracy. That judge will test you. You do not have to win every exchange. You do have to survive them without wobble.

A common trap arises when a judge offers a hypothetical. Hypotheticals are not games. They test the coherence of your rule, not the facts of your case. Treat them as line-drawing exercises. The right move is to accept the hypothetical’s premises and show where your rule draws a principled line. Weak answers include arguing that the hypothetical would never happen, refusing the premise, or insisting the case is different. If you must distinguish, do it on a legal axis, not intuition.

Standards of review decide more cases than you think

Appellate law runs on standards of review. Abuse of discretion, de novo, clear error, substantial evidence, harmless error: these are not slogans, they are constraints. Judges expect an appeals lawyer to live inside the relevant standard. That means two things at argument. First, your rule should be calibrated to the standard. Second, your rhetoric should be, too.

If you seek reversal of a discretionary evidentiary ruling, you need to demonstrate why the trial court’s ruling lacked a reasonable basis under existing precedent and how the error materially affected the outcome. If you seek de novo resolution of a statutory question, anchor your case to text, structure, and precedent, and be prepared for the court to adopt your rule across contexts beyond your facts. If you face harmless error, talk about reasonable probability and real-world impact, not just theoretical prejudice. Courts are sensitive to sandbagging; you cannot claim prejudice that your trial strategy invited.

In practice, you sometimes must fight on multiple standards. For example, a qualified immunity appeal may mix de novo legal questions with fact-bound summary judgment inferences. Be explicit about which hat you are wearing at each turn. Judges appreciate the discipline.

The record is your friend and your limit

Panels expect counsel to have command of the record, not a general sense. A confident “Joint Appendix 357, lines 6 to 15” saves time and builds trust. If the record is messy, do not gloss over it. Explain where the conflict lies and why it does not change the legal result. If the record is thin because issues were not preserved, own it and argue the narrowest path that still serves your client. Dancing around preservation issues almost always backfires.

There is a difference between correcting a misstatement and bickering about interpretation. If opposing counsel misstates a fact, correct it quickly with a citation and move on. Do not spiral into a fact seminar. Judges care more about how a fact matters than that it exists. Tie every fact to the standard and the rule you propose.

Candor buys credibility

Appellate judges value candor more than theatrics. If a case hurts you, acknowledge it and explain why it does not control. If the record contains an unfavorable admission, be the first to say it and contextualize it. If the trial lawyer failed to preserve an argument, do not pretend otherwise. Every appellate attorney has lived through a moment where a painful concession earned enough trust to persuade the panel on the core point. That does not mean surrender. It means editing out weak positions so your strong ones can breathe.

Candor also applies to the limits of your ask. Courts dislike stealth remedies. If you want a new trial, say so. If you want vacatur with instructions to apply a clarified rule, say so. If you want a narrow remand, spell out what the lower court should do and what the appellate court need not reach. Vague relief statements force judges to do remedial drafting in chambers, often in ways you will not like.

Oral argument is not a memory test

Memorization helps, but it is not the skill judges value. They watch for how you think under pressure, how you organize complex material, and appellate lawyer how you react to hard truths. That is why moots help more than lone practice. A good moot court panel replicates judicial behavior: they interrupt, change topics, probe hypotheticals, and explore remedial angles. They flag jargon and weak transitions. They remind you that every answer should point toward your rule and relief.

An appeals lawyer who relies on a script will falter when the first question wrecks the outline. A lawyer who has mapped the terrain can move naturally between issue, standard, record, and remedy without losing the thread. The difference is weeks of preparation focused on decision points, not golden sentences.

When silence is strategic

Some panels come quiet. Silence can feel like danger. It is not always. Sometimes the judges agree with you and want you to avoid new trouble. Sometimes they are exploring internal differences and want to hear how you would manage them. In a cold room, resist the urge to fill every second. Use your time to reinforce the decision rule, tie it tightly to the record, and address the one or two potential pitfalls you expect from a careful reader of the briefs.

If you get little engagement, do not interpret it as license to deliver a closing. Short sentences, clean structure, and disciplined points carry the day. The panel may have already written much of the outcome. Your job in that setting is to avoid surprising them with a concession or position that creates doubts.

Managing time like a professional

Appellate courts notice how you budget your minutes. Reserving rebuttal is often wise, but not automatic. If you are the appellant and the panel is hot, you may spend your time answering questions and have little left for rebuttal. That is fine. Substance beats ritual. If you do reserve, track the clock yourself. Do not expect the clerk to rescue you. When time is short, close with your relief and rule, not a flourish.

On rebuttal, be surgical. The most common mistake is re-arguing your case. Rebuttal exists to correct significant misstatements, answer new points that matter to the disposition, and return the court to the narrow path you offered. One or two focused points are plenty. Judges appreciate restraint.

Style that judges actually hear

Tone matters. Panels tend to favor three stylistic choices: conversational precision, respect for the court and opposing counsel, and control over emotion. Conversational does not mean casual. It means plain English, short clauses, and verbs that carry weight. Avoid Latin unless the court needs it. Avoid flourishes that feel like advocacy for advocacy’s sake.

Judges bristle at hostility toward opposing counsel or the trial court. If you must critique a lower court, critique the ruling, not the judge. If you must highlight opposing counsel’s mischaracterization, do so with a citation and a neutral tone. An appellate attorney who shows discipline under pressure sounds like someone a court can trust.

Finally, avoid overclaiming. Saying “this is the only possible outcome” invites a question designed to prove you wrong. Say what the law and record support. Leave room for the court to agree with you without adopting your most aggressive framing.

Geometry of remedies

Appellate litigation is not only about who is right. It is also about what happens next. Judges expect an appeals lawyer to present remedial options and rank them. If you want reversal, say whether it must be with instructions or whether a remand for further proceedings could suffice. If the court can decide a controlling legal issue and leave fact finding to the lower court, propose that. Courts appreciate counsel who think about judicial economy and institutional roles. That does not mean surrender remedial ground prematurely. It means showing you have considered what the court can do, not just what you wish it would do.

Pay attention to cross-appeals and pendent appellate jurisdiction. Remedial geometry gets tricky when multiple routes to a result exist. Be ready to explain how a ruling in your favor on one issue affects or moots others, and whether the court should reach alternative grounds.

Ethics in real time

Ethical duties do not pause at the lectern. If you discover after briefing that a case has been decided that bears on your issue, you must alert the court. If your client’s position changes or a factual premise becomes inaccurate, disclose it. Most courts have rules requiring post-briefing letters. Panels remember who follows them.

There is also the ethics of not overstepping your client’s authorization. Be sure you have clear instructions about settlement signals, concessions on damages or remedies, and adherence to positions taken below. Surprising your client is as damaging as surprising the court.

What judges say off the record

Over years of listening to debriefs and talking to judges, patterns emerge. Judges like advocates who frame the case in terms the court can write. They like lawyers who know the record cold and can pivot to the question asked without defensiveness. They dislike the habit of answering a question with a rehearsed sentence that does not match the question. They dislike grandstanding. They remember candor.

One judge put it this way: “I want the lawyer who helps me write the opinion the right way. If your first sentence sounds like a headline, I’m wary. If your second sentence tells me the standard of review and the relief you want, I lean in.”

Common traps and how to avoid them

A few pitfalls show up often enough to warrant specific warning. First, the temptation to turn every question into a platform for your theme. You can do both. Answer, then pivot. Second, the failure to mark transitions. A quiet “Turning to the standard of review” or “On preservation” helps the court follow you. Third, the urge to save your best point for rebuttal. Do not. You might not get there. Lead with strength.

Fourth, overreliance on policy arguments in a court that prioritizes text and precedent. Policy has a place, especially in state high courts and intermediate courts considering administrability. But policy cannot carry you if the rule you propose conflicts with controlling authority. Tie policy to precedent and record.

Finally, long, fact-heavy answers that do not mirror the level of abstraction of the question. If a judge asks about how your rule works beyond your case, rise to that level. Then return to your record cite to show there is a clean fit.

Practical preparation that pays off

The best appellate lawyers prepare like athletes. They stress-test weak joints, they simulate discomfort, and they train for recovery, not just execution. Three habits make a difference.

First, assemble a short, honest bench memo for yourself that lists the hardest questions you fear and your first-sentence answers. Do not write a script. Write pivots. A strong first sentence buys you time to develop the point.

Second, build a table of authorities and record pin cites you can see at a glance. Large fonts, sticky tabs, and a clean, minimal binder work better than a forest of paper. Your eyes should not drop lower than necessary.

Third, conduct at least one moot with lawyers who do not love your case. Ask them to be relentless. Ask someone to play the role of each judge on your panel if you know them, including the judge most likely to test your weak side. If your case sits in an area of appellate law with specialized norms, pull in someone who lives there. For example, a Federal Circuit patent appeal has different rhythms than a state criminal appeal.

When your opponent is great

Sometimes the other side’s appellate attorney is excellent. They will land clean, accurate answers and admit only what they must. Do not chase every point they make. Stay inside your structure. Abandon side issues that feel satisfying but do not move the needle. Judges can tell when advocates are fighting for inches that do not matter to the disposition. If the panel is leaning toward a narrow remand that avoids a broad holding you fear, meet them there and shape it. You are allowed to win small. Often that is the durable win.

Remote and hybrid arguments

In some courts, remote or hybrid oral arguments remain. The medium changes tactics. Slow down. Leave space after a judge’s question to avoid talking over one another. Test your audio, camera, and screen share if you intend to show a record page. Put your critical record cites in a one-page document in case the shared appendix lags. Maintain eye contact with the camera, not the screen. Remote settings magnify fidgeting and paper noise, and microphones punish shuffling. Judges still expect the same command of standards, record, and remedy. They are simply watching you through a different lens.

The appellate lawyer’s temperament

Great appellate lawyers are editors at heart. They strip away the dramatic, the extraneous, and the soothing myths clients tell themselves. They speak in the registers judges use when they write. They live with nuance and trade-offs. At argument, that temperament shows up as control. Control of pace. Control of scope. Control of emotion. The panel expects you to own the space, not fill it.

An appeals attorney who embodies that temperament gives the court what it needs: a principled path to a correct result that fits the law and the record, explained with enough humility to be believed and enough confidence to be followed. Everything else is decoration.

A short, practical checklist for the week before argument

    Reduce your ask to two sentences that include relief and standard of review. Practice saying them after being interrupted. Mark five record cites you can reach without looking down, each tied to a dispositive point. Identify three hard hypotheticals and draw lines your rule can defend without contortion. Script your concessions: what you will give up if asked, and what you will not. Decide your remedial hierarchy: the ideal outcome, the acceptable fallback, and the narrowest path that still serves your client.

Appellate oral argument is a discipline of restraint. Judges expect an advocate who understands what the court must do, not what the client wishes were true. When an appellate attorney brings that understanding to the lectern, the room gets quiet in the right way. The questions sharpen, the options clarify, and the opinion practically writes itself. That is not luck. That is the craft of appellate litigation done well.