The Trial Practice Tips Weblog

Appellate Argument and a Judge's "Motivating Principles"

From Persuasive Litigator: "Aim Your Oral Argument at Your Judge's Motivating Principle"--

The essential lesson is that you need to adapt to your audience. But the legal arena, with its emphasis on the neutral standards of law, can sometimes trick advocates into a belief that success just depends on the correct application of law and facts. Without an appreciation of the uniqueness of your decision maker, however, you aren't really persuading. This post takes a look at this principle as it relates to Justice Kennedy's dialogue in the healthcare oral arguments.

The full post explains a three-step process for aligning your argument with a judge's motivating principles.

Preparing for Oral Argument

From Lawyerist.com: "How to Prepare for Oral Argument," by Sam Glover--

Oral argument is one of the most exciting parts of litigation, and only a few lawyers are really good at it. But even if you aren’t a naturally-talented presenter, you can still improve. The important thing is to get away from your outline and use a more “modular” approach to oral argument.

The article continues by describing a comprehensive approach to preparing for oral argument.

Finally, here are some related posts from Trial Practice Tips--

"Oral Argument Tips from Someone Who Does It a Lot"

"Improve Your Oral Argument"

The Appeal Category

Improve Your Oral Argument

Here's advice from Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin, when asked for three ways that lawyers can improve their oral arguments--

First, know the record, your brief, and the cases on which you rely. Second, moot the case with other attorneys in your firm or with law students or faculty (a group often overlooked as a valuable resource). In short, practice practice practice! During practice sessions you will probably be asked many of the same the questions the Court will ask. Third, decide the two or three major points you want to make with the court. Keep them firmly in mind and make them at least once but probably several times. These same suggestions are given over and over by appellate judges and they warrant repeating.

Abrahamson's advice was giving in an interview with Howard Bashman, collected at Bashman's 20 Questions for the Appellate Judge site. It's question 16. At Bashman's site you'll also find interviews with twenty other appellate court judges--plenty of material to keep appellate-court junkies busy throughout the holidays!

Illinois Oral Arguments to be Posted on Web

From the Springfield Journal-Register: "Supreme Court Web site to feature audio, video of arguments," by Adriana Colindres--

Beginning next month, the Illinois Supreme Court will add a new feature to its Internet site: audio and video recordings of oral arguments in the cases it hears.

The court announced Friday that the arguments should be available on its Web site - www.state.il.us/court - the day after they take place, or possibly even sooner.

You can find more about the news in an Illinois Supreme Court press release (pdf). The audio will be available as MP3s; the video will be in Windows Media format. There will also be a podcast feed.

Several other courts already provide audio or video of oral arguments. You can find a list at the website for the law library at the University of Washington--scroll to the bottom of this page.

Appellate Court: Never Read Your Argument

It's a common tip for making oral arguments in appellate courts: never read your argument.

Not only is it boring for the judges, but you won't be able to respond easily to questions, because it will be harder for you to get back into the flow after you've answered. You'll also find it more difficult to respond to your opponent's arguments since you've set everything in stone beforehand.

If you're someone who can't help but write out your argument as part of your preparation (as I am), here's how to make sure you don't read from your script when it's time for your argument:

• As part of your preparation for your argument, script it out. Allow the script to evolve as your argument evolves.
• Practice your script. Revise if necessary. If it makes you feel better, even chart out where you're going to emphasize particular words, phrases, or pauses.
• A day or two before the argument, disassemble the script by turning it into a bare-bones outline. The idea is to replace entire paragraphs of argument with a few words or phrases that will keep you on track if you need to glance at the outline as you proceed, e.g., "introduction," "standard of review," "facts," and so on.
  
• Begin practicing your argument from the outline. Since you've already practiced your script, you'll find it easy to make your argument without it. Even so, new ways of making the argument might occur to you as you are "thinking on your feet" -- add these to your outline as they occur to you.
• Finally, when it's time to get up to make your argument, take your outline to the podium and leave the script at the table. Since you've been practicing from the outline, you won't miss it a bit.

This is my own personal oral-argument-preparation technique. Although I'd never thought about it closely before, I paid attention to what I was doing last week when I prepared for an oral argument that I did on Tuesday. Result: a complicated argument made in a conversational tone that didn't (apparently) make a single judge doze off. Mission accomplished.

Oral Argument Tips from Someone Who Does It a Lot

From Law.com: "Making the Most of Oral Argument," by Howard Bashman--

When I am representing the appellant, and thus am the first to take the lectern when the case is called for argument, I know that I will have at least a few moments of uninterrupted time before the onset of a barrage of questions. That time is best used to focus directly on the result I am asking the court to reach and the several reasons (to be covered in more detail during the argument, if the court allows) why the court should reach that result.

There's that and much more in Bashman's column. Read it before your next oral argument.

Writing Reply Briefs

"The Anatomy of an Effective Reply Brief," by Steffen N. Johnson, begins at page 29 of the Summer 2006 issue of Certworthy, the newsletter of the DRI Appellate Advocacy Committee.

The article contains many good tips like this one--

Your job . . . is to re-establish your theory of the case. In fact, by the time the judges have read the introduction to your reply brief, they should be singing your tune again, or at least remember what that tune is.

This is followed by two practical ways you can use to "get the judges refocused on the right issues and themes."

Certworthy is edited by Raymond Ward, who writes about other articles in the Summer issue at his weblog, the (new) legal writer. Thanks to reader Celia C. Elwell, a paralegal in Oklahoma City, for pointing me to the new issue of Certworthy.

A Tip for Oral Advocates: View Argument Like a Conversation with the Court

I like the approach to oral argument that's laid out in Catherine Wright Smith's "The Accidental Advocate: Tips for the Reluctant Rhetorician." Read one of the opening paragraphs and see if it doesn't draw you in--

What turned me from a sweaty-palmed novice with a lump in my throat to an eager advocate with a gleam in my eye? I think the change occurred when I realized that oral argument is a misnomer. An effective appearance before an appellate court should not be considered combat with opposing counsel. Instead, it is your only, golden opportunity for thoughtful dialogue with the judges who hold your client's fate in their minds - and hearts. Once I began looking at oral advocacy as a structured conversation with the court, many of the concerns I had about straying from the "script" of a prepared presentation disappeared . . .

It's not a bad way to view oral argument. The rest of Smith's article explains how she goes about preparing for oral argument from start to finish. Recommended for all oral advocates.

Becoming an Appellate Lawyer

From Howard Bashman of How Appealing: "So You'd Like To Be An Appellate Lawyer?" --

Recently I have received many requests for advice from individuals at or near the start of their legal careers who believe that being an appellate lawyer would be much more enjoyable and rewarding than what they are currently doing, which usually involves the practice of general commercial litigation.

I can certainly sympathize with these advice-seekers, because reviewing box after box of a document production, preparing mind-numbing answers and objections to written discovery, or rushing off to court, after staying up working through the preceding night, to seek or defend against an emergency injunction does not tend to be a recipe for job satisfaction for newly-minted lawyers.

The article continues with a story explaining how Bashman became an appellate lawyer that should serve as an example for all young lawyers hoping to escape the drudgery of document review. My recommendation? Read it.

Meanwhile, here's my own tip for those who want to become appellate lawyers: if you let others in your firm know that you can write well, it won't be long before you get the attention of your firm's appellate lawyers.

When I worked at a large defense firm, I broadcast my writing skills by volunteering to hold writing seminars for the brand-spanking-new associates (mandatory seminars, to the displeasure of my audience). I can't remember if this was before or after I began writing appellate briefs, but I ended up writing a lot of them. It also happened that I didn't like appellate work as much as Bashman did, and I eventually wriggled free of it to do more admiralty, railroad, and med-mal defense.

It's why lawyers like me are thankful for lawyers like Bashman, who can be found at the Law Offices of Howard Bashman.

When Appellate Lawyers Don't Know the Rules

Opinions like Technology Solutions Co. v. Northrop Grumman Corp., No. 1-02-0368 (3/31/05), which are issued from time to time by all appellate courts, are fun to read as long as you're not the target:

Defense counsel has filed two motions to strike plaintiff's briefs, or portions thereof, that we have taken with the case. For the reasons discussed below, these motions are denied. However, our denial in no way condones counsels' flagrant and extensive abuses here. The magnitude of such violations would easily warrant this court striking all of the briefs and dismissing the appeals in their entirety. LaGrange Memorial Hospital v. St. Paul Insurance Co., 317 Ill. App. 3d 863, 876, 740 N.E.2d 21 (2000).

Defendant filed a motion to strike plaintiff's statement of facts as violative of Supreme Court Rule 341(a) (188 Ill. 2d R. 341(a)). Defendant maintains that plaintiff's statement of facts contains legal discussion and argument, it includes facts not relevant to plaintiff's appeal, which are also conclusory, argumentative, and false, and those facts included that are relevant to its appeal are "riddled with improper argument," are conclusory, are conjecture, and are unsupported by the record. Defendant argues that the Illinois Appellate Court has repeatedly reaffirmed the importance of Rule 341 and, because plaintiff has blatantly violated this rule, we should strike plaintiff's statement of facts in its entirety.

We agree with defendant that portions of plaintiff's statement of facts contain improper argument. However, while defendant is seeking to use Rule 341 as a weapon against plaintiff, it, too, has blatantly violated that rule. Its statement of facts is also "riddled with improper argument" as well as misstatements of fact. Thus, both plaintiff and defendant's statement of facts violate Rule 341.

Additionally, in defendant's brief, counsel makes substantive arguments in its footnotes (see discussion below) and plaintiff's counsel then responds to these. Plaintiff's counsel, too, makes substantive arguments in its footnotes and defendant's counsel thereafter continues this conduct in defendant's reply brief. Substantive arguments may not be made in footnotes and responses made thereto are likewise improper. Lundy v. Farmers Group, Inc., 322 Ill. App. 3d 214, 218, 750 N.E.2d 314 (2001). In addition, defense counsel makes numerous misstatements of the facts and of the evidence in defendant's brief.

Don't let it happen to you: know the rules!