Dominance and Submission at the Appellate Court?

But of course!  Not of the leather, whips and chains variety, though.

“Dominance and submission” at appellate oral argument is one of the areas taken up by UNLV law professor Michael Higdon in his forthcoming Kansas Law Review article, available now at SSRN: Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience. From the abstract:

As you will see in the article, nonverbal communication goes well beyond simple hand gestures, but also encompasses how a person speaks, how a person dresses, a person’s facial expressivity, and even such things as a person’s posture and head position. Furthermore, social science research reveals that both these and other nonverbal cues can greatly impact the perceived credibility and persuasiveness of a speaker. Not only that, but in many instances, listeners tend to place even more reliance on what a speaker is saying nonverbally than the actual substance of the speaker’s presentation. Given that attorneys should seek to maximize their persuasive potential during oral argument, knowledge of this research and these various principles is essential. Section III of my article explores this research.

Of course, what makes nonverbal persuasion somewhat different for oral advocates comes from the fact that the attorney is directing his argument not to a jury, but to a judge. As my article details, one of the ways a speaker nonverbally increases his ability to persuade is by employing nonverbal cues that enhance the speaker’s perceived dominance. When appearing before a judge, however, the attorney must keep in mind that 1) it is the judge who is most dominant and 2) the judge expects nonverbal cues from the attorney that the attorney understands this hierarchy. Again using social science research, Section IV of my article explores this balancing act between dominance and submission and offers concrete advice on how oral advocates can navigate that somewhat thorny issue.

If you ever feel like testing out this theory of dominance and submission, just interrupt one of the judges while he or she is speaking.  You’ll usually learn who’s dominant pretty damn fast.

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Spoon-Feed the Appellate Judges

Richard PosnerImage via Wikipedia

Picture 3.png That’s just one piece of advice offered by Seventh Circuit Judge Richard Posner in his turn at the ABA Section of Litigation’s “Tips from the Trenches” column, titled “Convincing a Federal Court of Appeals.” Attorneys who fail to take into account that the appellate judges are not specialists and have a limited time to deal with each case are making a mistake; a judge “depends on the lawyers to provide enough background in the field out of which the case emerges to orient” the judge.

Tip no. 2: don’t think you can win by “rubbing the judges’ noses in the precedents.”

This terrific column provides lots of practical advice, closing with an 8-item list of “do’s and don’ts” of oral argument.

Hat tip: How Appealing.

Narrowing Appellate Issues

D. Todd Smith makes a good point at Texas Appellate Law Blog in the context of explaining why he likes oral argument:

[O]ne of my favorite aspects of oral argument is that it forces you to distill your case down to the barest elements. As the appellant, if you can’t persuade the court based on your best two or three points—which should all be covered thoroughly in your brief—you’re probably going to lose.

Hear, hear.

I think the same approach pays off in briefing. Rarely do you read an opinion that refers to a “scattershot” or “shotgun” approach by the appellant where those terms aren’t used (at least implicitly) insultingly or, more importantly, where the appellant actually prevails on any of those issues.

This is often a battleground between lawyers and their clients at both the trial and appellate stages. Clients want to include every last morsel of how they may have been wronged, while attorneys — good ones, at least — recognize that simpler is better, especially if it means letting go of of weak arguments.

Ray Ward posed this question at the top of his post at the (new) legal writer warning about the dangers of the “kitchen sink” approach:

When we try to narrow down the issues and arguments in a brief, throwing out the weak ones and keeping the strong ones, we take a risk: the risk that we may be getting rid of something that would have persuaded the judge. So should we get rid of those weak issues and arguments?

Citing some other writers, Ward offers some compelling reasons for answering “yes.” Not only does he offer the negative consequences of presenting weak arguments, he also offers reasons (besides the remote possibility of success) why we come up with them in the first place and then why we are reluctant to get rid of them.

I don’t think it is possible to set a hard and fast rule on the cutoff point, i.e., that point at which the odds of prevailing on any given argument reach so low a level that it should be dropped. That will obviously vary from case to case. I suppose there are cases where an appellant might raise 7, 8, or even 10 strong issues — but I haven’t run across one.

I generally approach the issue from the opposite end. Rather than start with every conceivable issue and then determine which ones to drop, I start with those same issues, pick the best two or three, then determine which of the remainder to add. In other words, instead of looking at how weak an argument has to be before I drop it, I ask how strong an argument has to be before I include it. That’s a tougher test for those remaining issues, and it helps prevent the pride of authorship in an early draft (one of the obstacles noted in Ward’s post) from getting in the way.

We’re paid to use our judgment. Is there a risk that one of the arguments that was raised during your brainstorming stage but never made it into the brief might have persuaded the judges? Absolutely. But using that possibility — often a very remote one — as an excuse to include every argument is asking for trouble.

By the way, for a personal anecdote on a misadventure resulting from including a weak argument mandated by my supervising partner against my protest early in my career, see this earlier post of mine.

Effective Oral Argument Preparation

It’s been a while since I’ve posted any advice on oral argument, so I went Googling last night and turned up this gem from an old Howard Bashman weekly column at Law.com. It’s not so much about the argument per se as it is the preparation for oral argument, for good reason:

Appellate judges commonly report that oral argument changes their mind about the outcome of an appeal in only a small fraction of cases. However, I’ve always viewed that information as an invitation to become even more prepared to deliver an effective appellate oral argument.

Appellate judges may have a draft opinion prepared, and may rarely change their minds due to oral argument, but — according to at least one justice I’ve spoken to — sometimes they are actually looking for the appellate advocate to give them a reason to change their mind.

You’ve Heard of Doubting Thomas. Here’s Silent Thomas.

This AP article explores the curious silence of Supreme Court Justice Clarence Thomas. According to the article, Justice Thomas has not asked a question at oral argument in two years. I knew he was a man of few words that rarely asked questions . . . but two years? That’s stunning.

He says he asks questions when he needs to.

Which reminds me of the kid who wouldn’t talk. At age 2, his parents took him to the doctor, who could find nothing physically wrong with him.

But at age 4, he still hadn’t said a word. To the doctor again. Again, nothing physically wrong.

And so it went for years, with his parents taking him to the doctor every year or so, only to be told again and again that there was no physical explanation.

Finally, one day when the boy was about 12 years old, he said during dinner, “The potatoes are cold.” His parents dropped their silverware in stunned disbelief.

“You can talk!” they shouted in unison.

“Of course I can talk,” said the boy. “So what?”

His parents made the obvious point: “You never talked before!”

“Up until now,” said the boy, “everything was fine.”

I wonder if they ever told that one in the Thomas household.

UPDATE (3/6/08): I’m curious who you readers in California or the Ninth Circuit find least likely to ask questions. Name your favorite silent California justice (Supreme Court or Court of Appeal) or Ninth Circuit judge in the comments.

Realism in Appellate Training

If we want students to learn to address an appellate court, shouldn’t the seating at moot court competitions at least resemble an appellate courtroom? All too often, it doesn’t, says Professor Colleen Barger at Legal Writing Prof Blog. Physical limitations of the venues hinder it, she notes, and she’s asking for suggestion she can offer moot court tournament organizers. If you have any, head over to the link.

Does It Make a Difference to Have Your Client Present at Oral Argument?

Every glimpse into the collective minds of appellate justices usually helps, especially with regard to oral argument, but Donna Bader provides an interesting insight at Appeal to Reason that I’m not sure what to do with. Her observation:

Once I questioned some justices about whether they look around the courtroom during oral argument to figure out who the parties [are]. If the attorney sits next to the clients, the answer is obvious. Sometimes, clients sit in the back, leaving the attorney alone to prepare for oral argument. Surprisingly, the justices admitted they had a certain curiosity as to who the participants were. More than that, there was also a curiosity as to why clients failed to show up for oral argument when the court’s decision could have a huge impact on their lives.

Her post falls short of saying how this curiosity typically impacts the thinking of a justice. Usual local practice would make it impossible for it to have a lot of impact unless the justices were willing to engage in a lot of guesswork, as I rarely see clients seated at counsel’s table. But even if the presence of clients were readily determinable, I think that this would have, at most, negligible impact — unless certain things we appellate lawyers tell ourselves and our clients about the appellate process are wrong.

The most gifted trial lawyers can make for lousy appellate lawyers — and vice versa — without tailoring their presentations for each forum. A commonly noted difference between the trial and appellate courts is that in the trial court, a lawyer tries to set a mood and may even seek to sway jurors based on emotional appeals, while the appellate lawyer’s presentation must be restricted to reason (which is not to say that the appellate lawyer cannot also tell a compelling story). Unless we’ve been kidding ourselves about this distinction, I have to think that the presence or absence of the client at oral argument is largely immaterial and impacts only the justices’ curiosity. Which may account for why Bader found this curiosity surprising.

An Interesting Law Blog from an Interesting Source

I’ve run across an interesting blog:  Winning Trial Advocacy Techniques.  With a title like that, I don’t need to tell you what its about.  But I got really interested in it after I’d read some interesting posts and clicked on the “about” link to see who runs it.  Turns out its an organization called “Trial Theater,” yet another name that gives you an idea of the organization’s perspective.  Worth checking out.

Bibliographies re Appellate Oral Advocacy and Brief Writing

Touro College’s Jacob D. Fuchsberg Law Center provides this list of research guides available as PDF downloads.  Included are these self-explanatory titles: and “May it Please the Court . . . “: A Select Bibliography of Appellate Oral Advocacy Materials  Best Brief: A Select Bibliography of Brief Writing Materials.  Both appear to be limited to materials available at the center’s library, but there’s enough reading on each of them to keep anyone but Evelyn Wood busy for a long, long time.

Oral Argument Advice from a Retired Justice

Reed Smith has a short paper on its website entitled “The Dynamics of Appellate Oral Argument.”  One of its authors served for fourteen years on the California Court of Appeal, so I think it is safe to say that this is some good advice.  The article addresses how the advocate can argue effectively despite not being privy to the “behind the scenes” activity at the court and possibly not being able to judge the motivation of the questioner:

You, of course, have entered the picture unaware of what went on behind the scenes and can only guess at what may be motivating a question.  For this reason, your first task as an advocate is to listen carefully to the judges’ questions and comments and take careful note of their demeanor and body language with an eye to determining a question’s meaning and purpose. Although discerning the underlying purpose of a question may be akin sometimes to reading tea leaves, by doing so, you can focus your argument to deal with the concerns of the judges who may be unfavorably inclined toward your case.

This is a short, but valuable, read, with insights into the nature of questioning from the justices.

Appellate Oral Advocacy is Conversation, not Argument

So says this article on the Sidley & Austin website:

[W]hy are so many oral arguments so awful? Because too many lawyers actually argue. “Oral argument” is a misnomer. It’s not an argument; it’s a conversation. Trial tactics and oral motion practice have little in common with appellate oral advocacy, except that all involve talking. Instead, the experienced oral advocate converses with the panel, as she and the judges grapple with the difficult legal issues presented by the case that will affect the development of the law.

This is a really good article that builds on the “conversation” theme by giving sound advice on how to prepare for that conversation.  Well worth the few minutes it takes to read, especially if you are new to appellate argument.

French Fry Follow-Up

Thanks to Carolyn Elefant of My Shingle.com for this post at Law.com Legal Blog Watch pointing out this article on the disposition of the OSC against the lawyer who told a judge she was “a few French fries short of a Happy Meal,” an event I first blogged about here. It didn’t turn out nearly as badly for the lawyer as the original OSC suggested it might. Perhaps the judge issued the OSC in a fit of pique and had a chance to calm down before the hearing. Maybe she saw some of the blogger comments, like those here or here.

Above the Law had several posts following the progress of this case, which are together on this page.

Disrespect . . . With All Due Respect

“I suggest to you with respect, Your Honor, that you’re a few French fries short of a Happy Meal in terms of what’s likely to take place.”

This statement to a judge was made by (a) a newly minted, naive lawyer; (b) a renegade solo criminal defense attorney; (c) a criminal defendant; (d) a partner from a prestigious, nationally recognized, Chicago-based law firm.

Answer: (d).

The remark earned him an order to show cause as to why he should not be suspended from practice before the court and have his pro hac vice admission revoked.

See Above the Law for the full story.  Some commenters there actually take the judge to task.  There are also some reasonable explanations offered for the lawyer’s statement, suggesting that the judge misunderstood the comment.  But I don’t know if any of them are right.

UPDATE (5/31/07): Is it possible I show too much deference for authority? Carolyn Elefant of the My Shingle blog really made me think with this post taking the judge to task for sandbagging the lawyer and overreacting by issuing the OSC and copying every judge on the court. Unlike most of the snarky commenters at Above the Law, she explains her position. If you’re a solo, you may also want to go to her main page and scroll through some of her posts about the special burdens of solos when it comes to sanctions and ethics charges.

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