The adage that a legal case is only as strong as the lawyer arguing it is never more profound than when the case is before the state’s top court.
The 30 minutes that a Maryland lawyer gets to argue before the Court of Appeals can mean success or failure for the client — and for the attorney’s reputation as an advocate.
Thus, lawyers are well advised to know what the judges expect — and what drives them mad — from those who appear before them at oral arguments.
High on the list of judicial peeves is inattention to the judges’ questions.
“I’ll get to that” is not an acceptable response to a question from the bench, said Court of Appeals Judge Glenn T. Harrell Jr.
The main purpose of oral argument is for the attorney to address the judge’s concerns, even as the lawyer zealously advocates for his or her client.
“Answer a judge’s question right away and then segue back” to your argument, Harrell advised. “You should be prepared to deal with the judge’s question when the judge asks the question.”
Judge Joseph F. Murphy Jr., who retired from the high court Sept. 30, offered a corollary.
“Answer the questions that the judges ask,” Murphy said. “The judge shouldn’t have to tell the lawyer to answer the question.”
Consider the consequences
The judges also wanted attorneys to know that although they are justifiably concerned about their clients’ fates, the high court must consider the decision’s effect on cases yet to be heard and decided.
Lawyers must be willing to focus not only on the facts of their client’s case but to engage in an “exploration of consequences” that their argument could have in other situations, said Court of Appeals Judge Lynne A. Battaglia.
By way of example, Battaglia recalled an oral argument in which a criminal-defense attorney came well prepared to explore the broader consequences of her position.
The case was Wisneski v. Maryland.
On Feb. 2, 2007, attorney Piedad Gomez argued that Gerald E. Wisneski’s conviction for indecent exposure could not stand because he had exposed himself in a private dwelling and in front of invited guests, which she contended was legal.
Gomez held fast to this argument, even when asked if a conviction could stand if the indecent exposure had occurred not in a home but in front of thousands of invited guests at the Baltimore Convention Center.
Gomez also maintained her position when asked if a defendant would remain innocent if he had exposed himself in the backyard of his house and was witnessed by a neighborhood boy who had climbed a tree or by passengers on an airplane that was flying low overhead.
“If there’s no expectation of privacy, does that make it [the exposure] public?” Gomez said in response to the alternative scenarios. “No, I think the inquiry is the character of the place and the relevant inquiry is, is it likely to be seen by the casual observer.”
Gomez’s argument, however, was not a winning one. Battaglia, writing for a 5-2 majority, upheld Wisneski’s conviction on April 18, 2007, because he had exposed himself in front of two “casual,” albeit invited, observers who were clearly offended by his actions.
The fact Gomez lost the case does not diminish the quality of her advocacy, Battaglia said.
“I don’t think the result defines the level of persuasiveness and responsiveness of the argument,” Battaglia added. “As a judge, I may be impressed by the argument but not persuaded in terms of the law itself. To me, somebody who can present an argument addressing each of the issues that a judge raises is quite impressive.”
Gomez declined to comment on her argument in Wisneski, citing her heavy caseload. She serves in the appellate division of the state public defender’s office.
Responsiveness to questions is not the only mark of an effective advocate.
Attorneys must also be willing to acknowledge when they do not have an answer to a judge’s inquiry and not try to “BS your way through the darkness,” Harrell said.
“If you don’t know the answer, admit it,” he added. “You might get points for being candid.”
They’re all good questions
Harrell said he also wants attorneys to know that flattery will get them nowhere when answering a judge’s question.
Lawyers, even when stalling to give themselves time to formulate a response, should never tell the judge, “You know, that’s a good question,” Harrell said.
Judges assume all their questions are good or they would not have asked them, he added.
“Just answer the question, if you can,” Harrell said. “Don’t patronize the judge.”
Veteran appellate attorney Andrew H. Baida said lawyers should not be unnerved but rather “rejoice” when judges ask them questions — even when the inquiries appear hostile to their position.
“The role of the advocate is to help the judges get the right result” for his or her client, said Baida, who has argued 46 cases before the Court of Appeals.
The question “is your chance to alleviate any concerns a judge might have about your case,” Baida said. “Try to answer the questions as well as you can.”
Lawyers also should not be discouraged if their answers fail to convince the judge who posed the question, as that jurist has but one vote on the seven-member Court of Appeals, said Baida, of Rosenberg|Martin|Greenberg LLP in Baltimore.
“You might not be turning this judge around, but you might be gaining traction with the other judges,” added Baida, who teaches appellate advocacy at the University of Maryland and University of Baltimore law schools and writes a regular column, “The Art of Appellate Advocacy,” for The Daily Record.
As for the argument itself, attorneys must come prepared to represent their clients but must also know when to sit down.
Attorneys who keep going after they have “run out the spool of thread that is their argument … risk losing ground or gilding the lily,” Harrell said. “The more confident advocates will know ‘I’ve said what I have to say.’ That usually comes from a person who knows his case very well and is very comfortable and confident. There is no reason to stand there and jabber.”
Harrell noted attorney M. Albert Figinski’s winning argument during a legislative redistricting case in 2002.
“He had more time and he said, ‘I don’t need it’ and he sat down,” Harrell said.
Figinski recalled that argument, in which he fought the state’s redrawing of district lines that could have adversely affected his two clients, state Sen. Norman R. Stone Jr., D-Baltimore County, and then-Sen. J. Lowell Stolzfus, R-Somerset, Wicomico and Worcester.
Figinski remembered arguing in rebuttal that the state had “the computers and the ability to make any map you want.”
“Just think how well those who have had the guts to fight this map will fare when they draw [the lines] again,” Figinski recalled telling the court. “You can’t let that happen. You can’t let those who have fought be punished.”
Figinski, of the Law Offices of Peter G. Angelos PC in Baltimore, said he realized “I couldn’t say anything more dramatic than that and I sat down.”
On Aug, 26, 2002, the high court ruled in In Re: Legislative Districting of the State, that the state’s redrawn map violated the Maryland Constitution’s requirement that district lines give due regard to natural boundaries and the boundaries of political subdivisions.
Don’t disrespect the judge
Murphy, the recently retired judge, said the key to appellate advocacy is “preparation, preparation and preparation.”
Echoing Murphy, veteran appellate attorney Paul Mark Sandler advised his colleagues to hold simulated “moot court” sessions as they prepare their arguments before the high court.
Being prepared is critical to an attorney’s reputation or “ethos” before the high court, which will serve the advocate — and his or her current and future clients — well before the judges, said Sandler, of Shapiro, Sher, Guinot & Sandler in Baltimore.
Succeeding as an appellate advocate does not necessarily depend on “how great you are but how the judges think of you,” added Sandler, who writes the blog The Art of Advocacy. “You need to be prepared. You need to be professional. You need to be credible.”
Murphy recalled an instance when an attorney diminished himself before the Court of Special Appeals by acting unprofessionally.
The incident occurred on Murphy’s first day on the Court of Special Appeals in 1993.
The attorney, whom Murphy did not name, implied that the trial judge whose ruling he was appealing did not know enough about the legal issue to have exercised judicial discretion.
“Before I had the opportunity to put him in his place, one of my colleagues did,” Murphy said, referring to then-Court of Special Appeals Judge Diana G. Motz. “It was very uncomfortable for the lawyer.”
The comment about the trial judge was “a needless slur that set the attorney’s argument back a ways,” Murphy said.