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November 2021


Short, sweet, and specific: Effective openings and closings in oral argument

By Kyle R. Kroll

The first impression is the last impression.” It’s a familiar phrase and one that underscores the importance of oral argument. Briefing is usually the first opportunity to make an impression, but appearing before judges in person is often more influential. The opening volley of your oral argument is crucial. But the last impression can be just as important as the first. As the saying goes, “You never win at oral argument, but you certainly can lose.” Your closing lines are therefore mission-critical as well.

What are the hallmarks of a strong opening and closing in oral argument? Most scholarship about oral advocacy focuses on the middle of the argument—the substance. And there is little advice regarding how to make a powerful and persuasive beginning and end. 

To address this information gap, this article surveys just some of the great oral advocates from Minnesota and elsewhere. A review of openings and closings from these greats reveals three key insights: keep it short, sweet, and specific. 

Openings: Theme and roadmap—briefly

Justice Ruth Bader Ginsberg led with the following piece of advice in remarking on advocacy: “Be brief, be pointed.”1 For openings, this typically means beginning with a thematic statement and a roadmap of your main points.2 

The thematic statement should remind the court of the nature of the case and reiterate your client’s story. And the roadmap should introduce  no more than three key points you wish to make. As one practitioner put it: “Write out an introduction that, from the very first sentence, captures the panel’s attention, frames the appeal and the issues, and presents a compelling narrative why your client should prevail….”3 It’s important that the theme not overshadow the roadmap, however.4 Although some scholars suggest completing the roadmap in 30 seconds—because sometimes that’s as much time as you will have before an interruption5—anything up to 60 seconds should suffice.  

Take, for example, this effective opener in Romag Fasteners, Inc. v. Fossil, Inc., from one of the most prolific appellate attorneys in U.S. Supreme Court history,6 Lisa S. Blatt:

The Lanham Act authorizes courts to remedy trademark violations by awarding infringers profits subject to the principles of equity. The question presented here is whether this phrase, “principles of equity,” requires trademark owners to prove willfulness as an absolute precondition to profit awards. The answer is no for three reasons: First, the phrase “principles of equity” signifies a multifactor analysis where no one factor is controlling. Second, the statutory text and structure supersede any settled willfulness requirement. And, third, there was no such settled background willfulness requirement.7

To avoid an interruption and ensure you make your key points, consider former U.S. Solicitor General Paul D. Clement’s succinct opening in United States Forest Service v. Cowpasture River Preservation Association:

Respondents’ effort to convert all of the land traversed by a Park Service-administered trail into lands in the National Park Service fails for reasons of text, context, and consequences.8

Clement’s very short roadmap identifies three key points (text, context, and consequences), while promoting the narrative that the respondent is trying to convert private into public land. 

Sometimes it is best to focus the inquiry on the single most dispositive and pressing issue, just as future Chief Judge John R. Tunheim (District of Minnesota) did in Growe v. Emison:

Redistricting is a power and responsibility that is reserved to the states in the first instance. This case presents the Court with an opportunity to illuminate that important principle and clarify the apparent confusion in the lower federal courts. I intend to direct my argument this morning to the abstention issue: Did the federal court err by refusing to abstain to an ongoing state judicial proceeding? And the case presents perhaps one of the most stark examples of what can go wrong when there are jurisdictional disputes in the redistricting process.9

Nicole A. Saharsky (a University of Minnesota Law School graduate and also one of the most prolific attorneys to argue in front of the U.S. Supreme Court)10 offered a shorter and sweeter opener on a key issue in DePierre v. United States:

Whether you call it freebase, coca paste or crack, it’s the same thing chemically. It is cocaine base, it is smokeable, it has the same effects on the user; and Congress did not limit the statute to one form of cocaine basis. This court should not do it, either.11

Aaron Van Oort focused the Court in on a dispositive issue after opening with a strong thematic point and summarizing the compelling facts: 

This case tests and exceeds the very outermost limits of what a person may be insured against under Nebraska law. In 2006, Commander David Kofoed of the Douglas County CSI unit committed the reprehensible act of planting false blood evidence against two innocent men in a murder investigation. For this criminal misconduct he was both convicted of a class four felony and it resulted in the civil judgments that are underlying this proceeding. In this appeal, the plaintiffs are arguing on his behalf—Commander Kofoed—that he has insurance coverage for the damages arising out of his wrongdoing, even for the punitive damages that were awarded against him. That’s incorrect under Nebraska law because Nebraska affirmatively forbids its political subdivisions like Douglas County, his employer, from paying civil judgments that arise out of criminal wrongdoing, whether they do it through insurance or otherwise.12

In each of these examples, the advocate’s winning opening was short, sweet, and specific. The openings usually include one or more thematic sentences. Theme appeals to ethics and morality, while the roadmap that introduces the key points appeals to logic. These advocates strive not only to show the court that their positions are right, but also that their clients are in the right.  Sometimes the advocates focus on one key issue, but where there is more than one, they often use signposts (“first,” “second,” “third”) to provide verbal organization in their roadmap. The opening roadmaps are short, even though they often paint a clear picture with salient facts or legal principles. Notice also the use of vivid and concrete language—the “sweet” part of the opening that often grabs attention. Further, the openings either implicitly or explicitly call for the court to make a certain holding (reverse, remand, etc.). Short, sweet, and specific. 

Closings: Make a compelling point, and tell the court what you want

Closings should also be short, sweet, and specific. Admittedly, advocates often have little—or no—time for a planned closing. Questions that arise during oral argument regularly fill up that space, and the lawyer runs out of time, only to offer a short “Thank you” at the end. But when time permits, the greats include closings that are short, sweet, and specific. 

For example, in Weinberger v. Wiesenfeld, future Justice Ruth Bader Ginsburg offered this concise and compelling closing: 

In sum, appellee respectfully requests that the judgment below be affirmed, thereby establishing that under this nation’s fundamental law, the woman worker’s national social insurance is no less valuable to her family than is the social insurance of the working man.13 

Justice Ginsburg’s closing is a model of short, sweet, and specific. She concisely boils down the issue on appeal to a clear ultimatum. She asks for specific relief: that the judgment be affirmed. The Court agreed. 

Appeals to bedrock principles—a version of “sweet”—are common among the greats. Eric J. Magnuson, in Padden Law Firm, PLLC v. Bridget Trice, appealed to core principles of client autonomy and choice:

Mr. Padden got the case in the door, he got some lawyers to handle it, and then he disappeared. And at the end of the day, he wants to get his full 30 percent contract because, if you read their brief, a contract is a contract. It’s not when it comes to attorneys’ fees. Not under Minnesota law. Judge Montgomery did the right thing by honoring the client’s wishes. This was a decision by Bridgett Trice and Quincy Adams, that they wanted the lawyers who really got them their recovery to be appropriately rewarded. They have the right as clients to do that, and if you’re going to worry about public policy, the public policy should be in recognizing the client’s interests and protecting those interests. Thank you.14

Like openings, the best closings share short, sweet, and specific qualities. Effective closings don’t belabor points, but instead reiterate the key points in simple and motivational terms. Prolific advocates inject personal style into their delivery. They include strong themes and narratives that appeal to ethics, morality, and justice. And they implicitly or explicitly ask the court to take a certain action, leaving little room for ambiguity. 

There is no one-size-fits-all approach to success in oral argument. But these winning examples provide useful guidance to practitioners. Keeping openings and closings brief, compelling, and on-point are key ingredients in making a lasting and persuasive impression. 


KYLE R. KROLL is an adjunct professor at the University of Minnesota Law School and an attorney at Winthrop & Weinstine, P.A. in Minneapolis, where he practices business litigation at both the trial and appellate levels. The views expressed in this article are those of the author alone, and not of any other person or organization.

The author expresses special thanks to Miriam Solomon for her research assistance and contributions to this article.



Notes

1 Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C.L.R. 567, 571 (1999).

2 See Stephanie A. Vaughan, Experiential Learning, Moving Forward in Teaching Oral Advocacy Skills by Looking Back at the Origins of Rhetoric, 59 S. Tex. L.R. 121 (2017); Sylvia H. Walbolt, Openings in Appellate Oral Arguments, Carlton Fields (3/22/2019). https://www.carltonfields.com/insights/publications/2019/openings-in-appellate-oral-arguments 

3 George W. Hicks, Jr. Oral Argument: A Guide to Preparation and Delivery for the First-Timer, KIRKLAND & ELLIS (8/16/2019). https://www.kirkland.com/publications/article/2019/08/oral-argument_a-guide-to-preparation-and-delivery  

4 Emily R. Bodtke, Arguing at the Appellate Level, Bench & Bar of Minn., April 2017, at 35 (“[I]t is far better to use the limited time available to explain why the law supports a desired outcome, rather than pontificate about the wrongs committed against a client.”).

5 See Hicks, Jr., supra. 

6 See Marlene Trestman, Women Advocates Before the Supreme Court, The Supreme Court Historical Society (5/21/2021). https://supremecourthistory.org/women-advocates-beforethe-supreme-court/ 

7 Romag Fasteners, Inc. v. Fossil, Inc., Oyez, https://www.oyez.org/cases/2019/18-1233 (last visited 8/26/2021). For more information about this case, in which Ms. Blatt faced off against Mr. Katyal, see Kyle R. Kroll, Lanham Act Disgorgement Just Go More Complicated, Bench & Bar of Minn. (Dec. 2020), https://www.mnbar.org/resources/publications/bench-bar/columns/2020/12/01/lanham-act-disgorgement-just-got-more-complicated. 

8 United states Forest Service v. Cowpasture River Preservation Association, Oyez, https://www.oyez.org/cases/2019/18-1584 (last visited 8/26/2021).

9 Growe v. Emison, Oyez, https://www.oyez.org/cases/1992/91-1420 (last visited 8/26/2021).

10 See Tresman, supra.

11 DePierre v. United States, Oyez, https://www.oyez.org/cases/2010/09-1533 (last visited 8/26/2021).

12 Sampson v. Lambert, Nos. 17-1104, 17-1106, 17-1114, 17-1117 (8th Cir. 2018), http://media-oa.ca8.uscourts.gov/OAaudio/2018/2/171104.MP3 

13 Weinberger v. Wiesenfeld, Oyez, https://www.oyez.org/cases/1974/73-1892 (last visited 8/26/2021).

14 Padden Law Firm, PLLC v. Trice, Nos. 18-2451, 18-2576 (8th Cir. 2019). http://media-oa.ca8.uscourts.gov/OAaudio/2019/10/182451.MP3

KYLE R. KROLL is an adjunct professor at the University of Minnesota Law School and an attorney at Winthrop & Weinstine, P.A. in Minneapolis, where he practices business litigation at both the trial and appellate levels. The views expressed in this article are those of the author alone, and not of any other person or organization.

The author expresses special thanks to Miriam Solomon for her research assistance and contributions to this article.


KYLE R. KROLL is an adjunct professor at the University of Minnesota Law School and an attorney at Winthrop & Weinstine, P.A. in Minneapolis, where he practices business litigation at both the trial and appellate levels. The views expressed in this article are those of the author alone, and not of any other person or organization.

The author expresses special thanks to Miriam Solomon for her research assistance and contributions to this article.

KYLE R. KROLL is an adjunct professor at the University of Minnesota Law School and an attorney at Winthrop & Weinstine, P.A. in Minneapolis, where he practices business litigation at both the trial and appellate levels. The views expressed in this article are those of the author alone, and not of any other person or organization.

The author expresses special thanks to Miriam Solomon for her research assistance and contributions to this article.

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