Get to the point: a case study

The en banc Third Circuit heard oral argument yesterday in two cases. The audio of the arguments is already up on the court’s website, here and here.

Listening to the argument in the first case — Douglas, a criminal-sentencing appeal — reminded me how important it is to ditch all the wind-up and get to the point.

Here is how the appellant’s argument began:

Thank you, your honor. [Pause] May it please this honorable Court. Attorney Ivory. My name is Arnold Bernard, and I represent the appellant in this matter, Kenneth Douglas. I’ve asked this panel if I would be permitted to retain five minutes for rebuttal in this matter ….


Thank you. It’s truly a humbling experience to be here before an en banc convention of this honorable Court. On behalf of myself and my client I’d like to thank this Court for granting additional review in this very important matter.

This decision will impact Mr. Douglas, but not only Mr. Douglas, it will likely impact similarly situated defendants across the nation. So with that I’m going to proceed to the arguments that I’ve prepared.

I’m going to dispense with explaining the standard of review that we are going to employ in this matter. I don’t believe that that’s at issue with regards to reviewing the sentencing decision.

However I would like to articulate the issue, and I believe it’s a very narrow and finite issue that this Court must decide. And that issue is specifically whether the appellant, Kenneth Douglas, held a position of trust when he was employed by United Airlines as an airline mechanic who possessed a security clearance and was convicted of smuggling cocaine through that airport that he worked at.

Now when we review the position of trust enhancement, we utilize a two-step process, determining whether or not the appellate held a position of trust and, if so, then whether the appellant abused that position of trust. That first step is reviewed de novo. And that’s what this Court is … I would point that this Court is looking at here.

That is not, not, not the way to start an oral argument.

He’s almost two minutes in, and he still hasn’t argued anything. For starters, the second, third, and fourth paragraphs should have been axed.

(By the way, he’s not getting interrupted because the Third Circuit gives en banc advocates 5 minutes without questions at the start.)

Jumping forward a ways, here is the first sentence counsel utters that contains an actual argument:

Those two examples, I would submit that the distinction between those examples and the singular example that it provides for when it should apply are that the individuals in those examples have mere physical access or the mere physical means to commit the crime by virtue of their access to areas from which the general public is prohibited.

That may not be perfect, but it’s an argument, finally. Counsel finishes that sentence more than three and a half minutes after his time began.

[I want to be clear that I’m not suggesting this guy is a bad lawyer or even that overall he gave a bad argument. Once he hit his stride, he made telling points, and, in fact, I suspect he may win this appeal. (So there, blog guy.) [UPDATE: he did.] I don’t even mean to suggest that the start of his argument is unusually bad. To the contrary, I think lots of lawyers make the same mistake, especially lawyers who, like him, don’t focus their practice on appeals. It’s just more obvious here because the judges aren’t jumping in to get him on track.]

Okay, so how do the best appellate advocates start their arguments? Well, in the 2016 sports-betting en banc argument (audio), here’s how Paul Clement started:

Good morning your honors, and may it please the Court. Paul Clement for the plaintiffs. New Jersey’s sports-wagering law is flatly inconsistent with PASPA.

If “getting to the point” were an Olympic sport, there’s your gold medalist. From the moment the presiding judge said “Mr. Clement?” to the end of his first sentence of substantive argument: less than 10 seconds.

We can all learn by observing argument done right — we should learn from the mistakes, too.