A blog on practice in the Nation’s second-most powerful court

The danger of spontaneous concessions at argument

Two cases decided by the D.C. Circuit today show the gravity of concessions at oral argument.

In one case, the court cited counsel’s concession as the decisive reason the client lost:

In any event … [the hospital] conceded at oral argument that if the key regulation was legitimately interpreted by the Board, that would be the end of the matter. We think that is exactly the situation here.

St. Helena Clear Lake Hosp. v. Becerra (No. 21-5117).

In another case, the court relied on counsel’s concession as confirming that a remand was needed:

Indeed, counsel [for the government] … conceded at oral argument that [the government] does not believe the … settlement agreement resolved any removal-related Title VII claims[.]

Weng v. Walsh (20-5264).

The point is not that all oral-argument concessions are bad. The point is to make them advisedly, after careful planning, and not because you’re trying to be courteous.

Here’s how Antonin Scalia and Bryan Garner put it:

We’ve advised you to volunteer concessions that careful deliberation shows are necessary. But concessions that you’re pressed to make on horseback, at oral argument, are something else. The unduly accommodating lawyer—a frequently observed creature, especially in appellate courts—has given away many a case.

It is not unusual for a judge to come to the bench, having read all the briefs, with a clear idea of what the judgment ought to be but for one missing fact, or but for one possible legal obstacle. If the judge can get you to concede that fact, or to concede a point that would make that legal obstacle irrelevant, the opinion is all but written. You should not cooperate in your own destruction.