U.S. Court of Appeals for the Fourth Circuit hears arguments at Duke

October 1, 2008Duke Law News

Oct. 1, 2008 — Duke Law students had an opportunity to closely observe appellate advocacy Sept. 26, when a three-judge panel from the United States Court of Appeals for the Fourth Circuit heard arguments in two cases.

The classroom-turned-courtroom was packed as Judges J. Harvie Wilkinson III, Paul V. Niemeyer, and Allyson Duncan ’75, listened to and questioned attorneys in one civil case and one criminal case.

Attending oral arguments gave students a chance to pick up on nuances that are otherwise imperceptible, said Kristin Collins Cope ’10. “Being there in person allows you to be engaged in the process,” she said. “You find yourself anticipating questions from the bench, agreeing with certain points made, and asking yourself how you would respond to the same questions.”

Professor Michael Tigar, a leading litigator who teaches two classes on appellate advocacy, called the experience invaluable.

“Oral argument before a Unites States Court of Appeals is an art and a discipline, and until you’ve witnessed one and analyzed the interaction between lawyers and judges, you aren’t really ready to do it,” Tigar said. “I don’t think that the very best moot court approximates what happens when something is really at stake. Moot court judges are looking for technique. These appellate judges are getting ready to decide an issue. It’s real.”

One of the cases argued at Duke involved a former air traffic controller who filed suit against the government, claiming that she worked in a sexually hostile environment, which eventually forced her to resign. She also claimed that she experienced retaliation for reporting her co-workers’ bad conduct.

The other case involved a felon found in possession of a handgun, who argued that the court should sentence him to a shorter imprisonment than that suggested by federal sentencing guidelines.

“In the one case you have a woman making a very serious claim against her employer, the government, and in the other, the judges will rule on how long someone has to spend in jail,” Tigar said. “These are real consequences.”

Appellate advocacy is a learnable set of skills, Tigar noted, but there are limits to what can be effectively taught in the classroom.

“It is a false assumption that you can grasp what an oral argument is all about by reading the court’s opinion, or even a transcript of the argument itself,” Tigar said. “The demeanor of the advocate, the pause between the question and the answer, the evident frustration of a judge, these are things not easily discernible from a transcript.”

Cope agreed, saying she paid close attention to the demeanor of the judges. “The judges had clearly different questioning styles, as well as different views of the case,” she said. “Both anticipating and responding to these was key for the advocates. No matter how polished a position each advocate had, they did not fare well if they didn't properly account for hostility, accept and capitalize on friendly help from the bench, or answer questions directly.”

Brian Kappel ’10, said there was another lesson to be learned from the arguments: “Students can take comfort in observing the difficulty that even experienced advocates have when speaking before the court.”
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