Persuasive Litigator

Practice the "Three P's" of Oral Argument: The Example of Paul Clement

By Dr. Ken Broda-Bahm: 

(Used by the kind permission of Art Lien, courtartist.com)

Over the past couple of weeks, I've been fixated on the historic oral arguments before the Supreme Court focusing on the healthcare law.  As I've reviewed the transcripts and audio recordings of the unprecedented six hours of oral argument, I've been struck by the skills of one advocate in particular.   In what I expect will be the conclusion to this series, I want to focus on some lessons learned from Paul Clement, who represents the twenty-six states challenging the constitutionality of the Affordable Care Act.  I hasten to add that I wasn't impressed by Mr. Clement based on the position he advocates -- in fact, I personally hope for a constitutional solution that does not involve throwing as many as thirty-two million Americans out of the health insurance market, but I was impressed by the quality and style of argument from the states' side.  

It is no surprise that Paul Clement, the former Solicitor General and current Bancroft PLLC partner, would turn in a superior performance.  After all, he is a Supreme Court superstar, scheduled to argue seven cases before the Court this term alone.  Evan Tager of Mayer Brown even called him the "LeBron James of law" due to the bidding war that ensued in 2008 when he left government service.  Observers tend to agree that he has lived up to the hype.  Veteran Supreme Court litigator Carter Phillips, for example, noted in an interview for Above the Law that Clement "did a spectacularly good job" and turned in "a very special performance" against the Act.  So, focusing on the Court's session on the individual mandate, I'd like to draw three lessons from the example of Mr. Clement's argument:  Prepare, prioritize and pivot.   Prepare extensively, prioritize the judge's question over all else, but pivot back to your own talking points wherever possible.   

Aim Your Oral Argument at Your Judge's Motivating Principle

By Dr. Ken Broda-Bahm: 

All eyes are on Justice Kennedy at the conclusion of last week's Supreme Court oral arguments on the constitutionality of the Affordable Care Act.  As a closely analyzed swing vote, the Justice's words are scrutinized like the tea leaves of the upcoming verdict expected in June.  In a well-researched piece in The New York Times, author Adam Liptak focuses on how the parties tailored their arguments to appeal to Justice Kennedy's central motivating principle:  liberty.  The analysis points to a lesson that all advocates who engage in oral arguments should take to heart:  figure out what drives your judge's thinking and frame your arguments along those lines.   

The concept is familiar to anyone who has studied public speaking or rhetoric.  The essential lesson is that you need to adapt to your audience.  But the legal arena, with its emphasis on the neutral standards of law, can sometimes trick advocates into a belief that success just depends on the correct application of law and facts.  Without an appreciation of the uniqueness of your decision maker, however, you aren't really persuading.  This post takes a look at this principle as it relates to Justice Kennedy's dialogue in the healthcare oral arguments.

Oral Arguments: Cut In To Your Case Before You're Cut Off By Your Judge

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.   

Don't Let Your Judge Reduce You to Absurdity

By Dr. Ken Broda-Bahm: 

Justice Scalia strongly believes that you should not be forced to buy broccoli.  This week, the U.S. Supreme Court is addressing the legality of the Affordable Care Act, with Tuesday's oral arguments focusing on whether an individual mandate to buy health insurance is consistent with the Constitution's Commerce Clause.  Defending the law, Donald Verrilli argued that Congress is regulating the interstate market for healthcare, and since everyone needs healthcare sooner or later, and insurance is the main method of paying for it, congress can require individual insurance coverage.  "It may well be that everybody needs healthcare sooner or later," Justice Scalia fired back, "but…everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”

It is a favored method of judicial counterargument, termed reductio ad absurdum, the Latin phrase referring to disproof by showing that the argument leads to absurd conclusions.  Tuesday's oral argument focused to a large extent on this style of argument with, for example, Chief Justice Roberts talking about required cell phone purchase and Justice Alito talking about requirements to finance burial services.  There is a formula for addressing this common style of argument.  Whether it will end up being successful or not remains to be seen, but the response was on full display in Tuesday's arguments.  Taking a cue from this current hearing, this post will take a closer look at the logic of the argument style and its response, as a guide to all lawyers who want to prevent your judge from taking the argument from where you built it to an absurd place.   

No Blank Slate (Part 3): With Judges, Arbitrators, and Mediators, Don’t Assume They're Neutral

By Dr. Ken Broda-Bahm -

 
Judges, arbitrators, mediators:  legally trained and neutral minds, without the juror's baggage of selective perception, predisposition, and bias, right?  Not really.  In the previous two posts on motivated thinking and instrumental argument, I wrote that an audience's reasoning and advocacy is driven by emotions and not just by logic.  While a jury's decision making and deliberations might be the acts most obviously implicated in these findings, the mental processes are by no means unique to juries.  The experience of going to law school and occupying a specific legal role does tend to refine legal understanding and decision making quality, but that doesn't provide a blanket exemption to human psychology and communications. 

Indeed, the experienced legal practitioner is more likely than the novice to rely on heuristics, those rules and routines that tend to simplify and systematize decision-making.  In some ways, that is what "expertise" means: an expanded reliance on heuristics.   Rather than making non-jury decision makers neutral and above the influence of human factors, these very heuristics serve to ingrain a decision maker's habits and preferences.  This post takes a look at some of the research on bias in non-jury legal audiences and shares some advice on addressing those factors.