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

• Case briefs if there are many relevant cases, or key pages from key cases

• Break down by issue if there’s more than one

GET READY

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

(the right one)

(on time)

GET TO THE COURTHOUSE

STAY READYThey 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

WALKING UP

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

GETTING SET

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

“WE WILL NOW HEAR FROM …”

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

GET GOING

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

BE COOL

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.)

BE REAL COOL

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”

KEEP GOING

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

WALKING OFF

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

RELAX!