What constitutes effective appellate advocacy? As part of Seventh Circuit Day in Eckstein Hall on September 25, 2025, Marquette Law School students heard answers firsthand from a group of judges of the U.S. Court of Appeals for the Seventh Circuit. These were Chief Judge Diane S. Sykes and Judges Frank H. Easterbrook, Michael B. Brennan, and Michael Y. Scudder. (Judge Brennan became chief judge a few days later, on October 1, upon Judge Sykes’s taking senior status.) Earlier in the day, students attended oral arguments before the court in the Law School’s Lubar Center, as described by Dean Kearney in the first of this series of blog posts. Those attending the midafternoon Q&A session, moderated by Professor Anne Berleman Kearney, were primarily upper-level students taking Appellate Writing and Advocacy.
Chief Judge Sykes started the discussion by stating that briefs are 95 percent of persuasive advocacy on appeal. Oral argument then amplifies, tests, and probes the strengths and weaknesses of the parties’ arguments. First, regarding the factual history in a brief: tell the facts in a story form. Make the factual narrative efficient, readable, and quickly understandable. Judges are generalists who need to ramp up quickly on the facts and procedural history. The facts should read like a good magazine article. Second, regarding the argument: select issues carefully. Pick the most salient issues. Present a well-organized package for pivot points that may be decisive. Help a court understand why the rule advocated for is the right one.
Judge Easterbrook agreed and expanded. To organize a brief, he advised, think about what is the best set of arguments supporting why a client should win on appeal. That might be different from the arguments presented at the trial court. Explain why a client has a good legal theory. Brief writing can be viewed in terms of costs and benefits. Consider the evolution of the typewriter to the word processor. With word processing, adding words has become too easy.
Judge Brennan concurred. Constructively engage with the lower court’s decision and reasoning and with an opponent’s arguments. Limit the number of issues and develop them well. The fifth issue has pretty well never won an appeal.
Judge Scudder reminded the audience that a shorter brief is often more effective. Don’t make a brief longer than necessary. Edit.
Turning to the question of effective oral argument, Judge Scudder stated that judges see oral argument as an opportunity to obtain an objective and accurate understanding of the facts, to clarify what happened in the case below, and to explore points from the briefing. Judges are seeking to test the boundaries by advancing the strongest counterarguments.
Oral argument may adjust the path of reasoning the court will use, so an advocate can learn a lot by listening to the questions the judges are asking. In preparing an oral argument, plan what affirmative points must be made. Force yourself to think about the hardest formulation of your client’s weakest argument and how does that translate to questions you will be asked at oral argument. Ask yourself what those questions are, and practice answering them.
Chief Judge Sykes elaborated. Reflect on what is important to the judges, what they might ask to test the boundaries. Will the decision be to state a new rule or law (or not)? Contemplate how well-developed the law is and how a court will react to the arguments. A court thinks about how its opinion will affect future cases—will a decision stand the test of time? Judges don’t want to damage the law. Argument time goes quickly, so try to get in the biggest argument. An advocate can’t read from a script yet must stay focused. Oral argument is a dialogue to probe the strengths and weaknesses of the case and what law should come out of the case.
Judge Easterbrook likened a brief to a monologue, while oral argument is a dialogue. Every judge reads with a red pencil in hand (or an imaginary one). The oral argument is an opportunity to fill in what’s been left out of the brief. Questions reflect the judges’ notes in the margins. To that end, mooting a brief, a practice in which colleagues are invited to read a brief and provide feedback on it, usually in a roundtable format, helps expand an argument beyond the horizon, as Judge Easterbrook observed at the Solicitor General’s Office early in his career.
Moot a case at least once, Judge Brennan advised. What questions does a lawyer not want to hear at oral argument? Those are the ones to focus on the most. A moot court will help an advocate be confident and engaging.
Many thanks to the judges on the panel for their candid and heartfelt advice to appellate advocates to be.