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…
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Spoon-Feed the Appellate Judges
Image via Wikipedia 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…
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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…
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Scalia and Garner Together for $29.95
For their book, of course. (Mr. Garner’s speaking fees are considerably higher, I’m sure.) Making Your Case: The Art of Persuading Judges is scheduled for release today. An article describing Justice Scalia’s and Mr. Garner’s collaboration is here. Hat tip: CAAFlog.
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Oral Argument Resources
On the internet, it seems a lot easier to find legal writing advice than to find advice for appellate oral argument. I was pleased last week to turn up an old Howard Bashman column on preparing for oral argument, but Legal Writing Prof Blog has collected that link and five others, including one specific to criminal cases, at oral argument: a bouquet of links.
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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…
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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…
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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.
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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…
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The Arbitration Skill Set
Are the skills and tactics best suited for arbitration very different than those routinely used in litigation? Legal Writing Prof Blog has a link to an upcoming law review article on the topic.
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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.
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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.
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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…
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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. …
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How Not to Argue Your Case
The UCLA Moot Court Honors Program links to an audio file (less than four minutes long) of oral argument in a Seventh Circuit case that demonstrates how not to argue your case. Technorati Tags: oral advocacy
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The Clerks’ Advice to Appellate Counsel
With thanks to the Second Opinions blog, here’s a brief article written by clerks to two Texas appellate justices, offering advice to appellate counsel — A View from the Cheap Seats: The Top Ten Tips For Appellate Attorneys From Law Clerks. A quick and helpful read, with advice that applies across state lines.
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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…
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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…