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Appellate Argument. GETTING READY TO GET READY. How to make argument all it can be. Think of argument as a reasoned dialogue about the issues Make a tabbed binder Minimizes materials in hand at lectern Argument outline, noting key record/case cites Copies of key documents and statutes
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How to make argument all it can be • Think of argument as a reasoned dialogue about the issues • Make a tabbed binder • Minimizes materials in hand at lectern • Argument outline, noting key record/case cites • Copies of key documents and statutes • Case briefs if there are many relevant cases, or key pages from key cases • Break down by issue if there’s more than one
Prepare, prepare, prepare • Know the record and cases • Play the devil’s advocate yourself • Get someone else to play the devil’s advocate • Identify and prepare answers for all the “tough” questions • Moot your case • Rehearse your argument • Rehearse variations: improvise, adapt, overcome
Get to the courthouse (the right one) (on time)
Stay ready They see everything! • Be professional in manner and speech at all times • Be nice to the staff • Pay attention to how the calendar is progressing • Be ready to approach as soon as case preceding yours ends • Have all your materials gathered up • Stay focused – don’t take a nap
Walk tall • Approach counsel table • without undue delay • quickly and with purpose • Know which side is yours • Have a plan with your team – no scrambling around
This is not move-in day On reaching counsel table • Organize yourself and sit down quickly • Keep “spreading out” to a minimum (you won’t be there long)
Keep it together While waiting at counsel table • Sit in a state of readiness — tall, at attention and looking at the panel • Sit at attention, listening, taking notes if necessary • Do not react with facial expressions, shaking head or other body language • If you are already agitated at counsel table, your demeanor and voice will already be skewed when you reach the lectern • There should be an absolute minimum of communication between co-counsel while waiting at counsel table; discretely pass a note if necessary
Don’t panic! • Minimize what you take to the lectern • You should already have your materials honed to the essentials and organized for immediate access • Rarely need more than an outline or thin notebook • Stand tall, hands at sides or resting lightly on lectern • Don’t lean on or over lectern • Look at the panel
This is your time to shine • Maintain eye contact with judges as much as possible • Almost never read from a script • (but you can glance at an outline to be sure you’ve covered all your points) • Almost never read from exhibits or cases • If a case or exhibit is that important, it should be quoted in your brief • Refer to the page of your brief • Almost never use a visual aid • Anything that important should be in your brief – refer to that page • Anyway, the panel is too far away to see it
Project calm confidence • The look of an argument comes down to face, hands, and body • The sound, of course, comes down to voice
face • Eyes: • Maintain eye contact with each member of the panel. Don’t scan. Focus on individuals. • You can favor the question-asker, but don’t turn your attention exclusively to her. Do not favor the male over the female judges. • Eyebrows: • The most obvious give-away of tension. Brows up communicates fear or surprise. Brows down communicates anger. Maintain “neutral” eyebrows. • Head: • Position head to look forward. Do not keep head down, buried in your notes. Do not tilt head back and “look down your nose” at the judges.
hands • Gestures are good if they communicate, bad if they distract. • If you naturally talk with your hands, then keep gesturing. If you do not talk with your hands, leave your hands on the podium – relaxed, not grasping the side of the podium as if holding on for dear life. • To not distract, keep gestures to a modified strike zone: below the shoulders and “over the plate.” • Do not clasp your hands, which is a “tell” for tension and suggests that you are begging. Keep your palms facing downward or inward. Palms-up gestures also give the impression of begging. • Do not point at the panel – this is an aggressive gesture.
body • Relaxed and upright. • “Lengthen” yourself. Imagine you are suspended from a silver thread. • Stand strong. • Feet shoulder-width apart. • Feet facing forward or very slightly splayed, as feels comfortable. • Knees not locked. • Once you are in this position, don’t move your feet or your knees unless to consciously shift position. This will eliminate “sway.”
voice • Eliminate tension in your voice • Drop eyebrows to neutral • Allow your jaw and throat to “fall” • Relax the diaphragm. Can’t relax? Jut out your belly. (You have a podium in front of you. No one will see.)
Engage in respectful, professional discourse … • Don’t let anything communicate that you think the judges are idiots • Arrogance will annoy them and detract from the substance • Don’t make personal attacks on your opponent • The judges don’t care • They don’t like it • It is districting and never helpful • Anyway: • They already know you hate each other … • … and don’t care • If it’s important to the appeal the opinion will deal with it • If you need to point out an incorrect statement, say something like “counsel is in error,” state what is correct, and leave it at that
… no matter how frustrated you are • Stay calm • Maintain a reasoned tone of voice • Speak with conviction • Modulate for emphasis … • … but guard against shrillness and bitterness • Be self-effacing • They’re never stupid – YOU are • If court doesn’t seem to be “getting it,” be diplomatic: “I can tell I haven’t been clear enough, so let me come at it this way”
Even if they’re destroying your case • Pay attention to what the court is asking • Answer the question now, not on your schedule • If the court highlights what it thinks the issue is, address that issue first • Pay attention to how the court is reacting • Don’t waste time on an issue that you’ve clearly won • “It appears the court thoroughly understands issue A. Unless court has questions, I’ll turn to issue B.” • If you get a softball question, be happy for the gift and maximize it • If they trampled appellant, take the hint as the respondent • “It appears the court thoroughly understands the case. Unless the court has questions, I’m prepared to submit.” • If you tell the court you think the issues are fully briefed and you don’t need to add anything, don’t add anything
Like you nailed it • Stay calm and controlled • Leave the lectern and counsel table… • … with dispatch and a minimal amount of shuffling • Don’t start chatting with co-counsel or your client until outside the courtroom
