Georgia’s Pilot, SCOTUS Practice—Your Opening Matters Most

The 120-Second Shield: How Two Courts Are Testing a New Defense Against Judicial Interruptions

Picture this: You’ve spent months crafting the perfect opening to your appellate argument. You’ve rehearsed it dozens of times, refined every word, and you’re finally at the podium. You open your mouth to speak those carefully chosen first words and—”Counselor, what exactly are you asking us to do here?”

Before you’ve uttered your third word, you’re already defending your position instead of presenting it. Welcome to the reality of most appellate oral arguments, where even the most seasoned litigators can find themselves playing defense from the opening bell.

This scenario plays out daily in appellate courts across the country, but two courts are experimenting with a simple yet potentially revolutionary concept: giving attorneys two uninterrupted minutes to make their case before the questioning begins.

The Birth of a Two-Minute Revolution

Since October 2019, appellate counsel arguing before the U.S. Supreme Court have been granted two initial minutes of oral argument undisturbed by questions from justices.¹ The format change isn’t a rule of the court, but it spawned from the court’s 2019 “Guide for Counsel” issued by the clerk of the court during that term. Per the guide, justices “generally will not question lead counsel for petitioners (or appellants) and respondents (or appellees) during the first two minutes of argument.”²

Under the leadership of newly installed Chief Justice Nels S. D. Peterson, the Supreme Court of Georgia has been testing out the two-minute question-free format since April.³

From Hours to Minutes: The Historical Arc of Argument Time

To understand how revolutionary even two minutes of protection might be, consider how dramatically argument time has contracted over the centuries. The Lincoln-Douglas debates of 1858 featured a format that would seem almost incomprehensible by today’s standards: “an opening speech, an hour-and-a half rebuttal, followed by a half-hour rejoinder.”⁴ Each debate was three hours long, with the two men traveling to seven Illinois towns to engage thousands of spectators gathered in outdoor venues without loudspeakers.⁵

The contrast with modern appellate practice is stark. In the Court of Appeal, you will have up to 30 minutes to present your argument (unless the court gives you more or less time).⁶ The First Circuit only allows 15 minutes per side.⁷ What took Lincoln and Douglas three hours to accomplish in front of thousands now must be compressed into minutes before a panel of three or more judges who can interrupt at will.

The Challenge of Rapid-Fire Questioning

Any appellate attorney who’s stood at that podium knows the challenge. Judges may interrupt you (and the other side) to ask questions about your case and the laws and other cases that you cited or should have cited in your brief.⁸ In 1871, when argument time was reduced to two hours per side and questioning became more aggressive, this led to an ever so familiar sentiment amongst advocates: the fear of being interrupted.⁹

As their time before the justices got slimmer, many advocates found it difficult to run through their prepared spiels and respond to questions. Some attorneys even tried to ignore questions they were asked!¹⁰

The psychological reality of facing a barrage of questions without time to think is well-documented. “Starting to give an answer before thinking about what to say. Advocates often rush into answering a question, fearing two seconds of silence, and then flounder or reverse course as they reformat their answers on the fly. It’s always better to take a beat to be sure you know what you want to say before you start speaking.”¹¹

The stress manifests in predictable ways. Appearing at the Appellate Division for oral argument is always an interesting experience… The questioning by the Appellate Judges is insightful and piercing all at once and they are quite skillful at cutting through both facts and legal arguments.¹² Whether you’re accused of a crime or addressing family issues in family court, you may also feel anxiety when people discuss what you did or who you are as a person… true anxiety can cause sweatiness, shaking, nausea, elevated blood pressure, hyperventilation, weakness, difficulty concentrating, and even anger or rage.¹³

The challenge becomes even more acute when attorneys face what experts call “rapid-fire” questioning. “The most serious error at oral argument is not listening carefully to the questions and thus failing to address the concerns raised by the judges.”¹⁴ Yet when questions come in rapid succession, attorneys often find themselves in the impossible position of trying to listen, think, and respond simultaneously without adequate time to process.

Modern attorneys face a particularly difficult preparation challenge. “Unfortunately for the attorney, each of his answers to a judge’s questions leads to the judge asking a more difficult question for which the attorney is unprepared… it was painfully obvious that no one attending this session wanted to be the unprepared attorney.”¹⁵ The fundamental problem is that you cannot predict which questions will come, in what order, or how the judges will react to your answers.

Voices from the Trenches

Cooley partner Ephraim McDowell in Washington, D.C., has encountered the oral argument format on multiple occasions and is a strong supporter of it.¹⁶ Having argued five cases before the Supreme Court involving securities, tax and First Amendment matters, McDowell understands the stakes.

“The uninterrupted two-minute format is a rare opportunity and allows advocates to make their primary high-level points before receiving questions,” McDowell said. “When arguing in the Supreme Court, the justices are such active questioners that it is sometimes difficult to make your full points before they interrupt.”¹⁷

His strategy reflects the time pressure: To ensure he delivers his central arguments, McDowell said he tries “not to waste any second of the two minutes.” With efficiency in mind, McDowell said he focuses “on the two or three main arguments” that he deems necessary for his client to prevail.¹⁸

But not everyone is convinced the change is necessary. Bondurant Mixson & Elmore partner Michael B. Terry, who represents plaintiffs and defendants in complex commercial and appellate matters, said the change was progress… “But I have generally found them to be helpful early guides to the concerns of the justices that help steer the argument. I don’t think this procedure will cause any major change in oral arguments here, but it will give the flow of the arguments a certain heightened predictability.”¹⁹

Terry’s partner Naveen Ramachandrappa echoed that sentiment, but said that he didn’t think the new format would alter much for him and other lawyers “who regularly appear in appellate courts.” “Personally, I want the justices’ questions as soon as possible. And, if there’s a choice, I’d probably waive this option,” he said.²⁰

The Broader Impact: Lessons for All Appellate Practice

The 120-second rule addresses a fundamental challenge in appellate advocacy that transcends individual courts. Ramachandrappa noted the shift in procedure “could have real benefits” for attorneys who don’t regularly appear in appellate courts… “It may help calm their nerves. Knowing that, no matter what, they get two uninterrupted minutes may put them at ease going into the argument.”²¹

This psychological benefit extends beyond attorney comfort. Ramachandrappa said it might also benefit clients who aren’t accustomed to appellate courts as well. “It can be jarring for clients to immediately hear what they perceive as critical questions before their lawyer even gets through the first minute,” he said. “Allowing their lawyer to speak uninterrupted for two minutes will make clients feel their case is better heard.”²²

Former Supreme Court of Georgia Chief Justice Leah Ward Sears, who now argues before her former colleagues as a partner at Smith Gambrell Russell in Atlanta… praised the format: “The United States Supreme Court has been using this two-minute rule since the pandemic and it has been well received… I think it’s good for two reasons. First, it allows the lawyers to set out their theory of the case and set the stage before being peppered with a lot of questions. Second, it’s fair. Because some justices ask more questions than others, it gives all the justices a chance to get a grip on the lawyers’ view of their cases before the questions begin.”²³

The Expensive Reality of Preparation

Whether courts adopt the 120-second format or maintain traditional questioning, the fundamental challenge remains: preparing for questions you cannot predict while under intense time pressure. “Turn potential questions into affirmative points… it is a good idea to figure out the two or three hardest questions you think you will receive and turn them into positive points to make in your argument before the questions can be asked. This will dispel many of the judges’ concerns about your position, potentially short-circuit some of the questioning, and often impress the court.”²⁴

The most commonly recommended preparation technique—moot court—reveals the economic reality facing many attorneys. “The single most important thing you can do to prepare for an appellate argument is to hold a moot court. Ask three colleagues to serve as judges. They should be litigators, but they need not have any expertise in your case’s subject matter—your panel won’t, after all. Provide the briefs and other relevant materials several weeks before the moot.”²⁵ At current attorney billing rates, having three colleagues spend hours reading case materials and conducting mock arguments becomes prohibitively expensive for many practitioners, especially those in smaller firms or handling cases with limited budgets.

The alternative—attempting to prepare alone—leaves attorneys vulnerable. “There’s a first time for everything. But when it’s your first oral argument in an appellate court, the task ahead can seem overwhelming. Your every word will be scrutinized. A single stray statement could mean, for your client, the difference between victory and defeat.”²⁶

The key insight from experienced appellate advocates is understanding the nature of the challenge. Questions from the bench are the most important part of the argument, not an incidental interruption that must be tolerated. When judges ask questions, they’re often testing the boundaries and implications of your position.²⁷

Preparation must account for the reality that thinking time during argument is virtually nonexistent. Your success at oral argument will be based purely on your responses to the questions the judges have after reading the briefing.²⁸ The cruel irony is that the preparation attorneys most need—extensive mock questioning by knowledgeable colleagues—is often the preparation they can least afford.

While the Supreme Court and Georgia experiment with protecting attorneys’ opening moments, the vast majority of appellate courts continue the traditional approach where any attorney who stands up becomes immediate fair game for questioning. Whether you get 120 seconds of peace or face immediate interrogation, success depends on the same fundamental: being so thoroughly prepared that you can think, listen, and respond under the most intense professional pressure most lawyers will ever face.