I will be speaking next week on appellate advocacy in
employment cases to the Metropolitan
Washington Employment Lawyers Association.
In preparation for this speech, I have spent some time speaking
confidentially with federal appellate court judges about their views on what
makes an effective appellate advocate.
This blog reflects their thoughts, as well as my own experiences.
1.
Know When to Shut Up
Do not try to speak over the judges. Do not interrupt the judges. Never start talking until you are sure that
the judge has finished. This is the
first rule for two very good reasons, one obvious, and one less obvious. The obvious reason is that, while simple
decorum will not win you your case, rudeness is the surest way to turn an
otherwise sympathetic judge against your case.
The less obvious reason for this rule is that you want to be sure that
you answer the judge’s question (Rule 4) and that the judge may be trying to
help you (Rule 6 “Know Your Friends”).
If you don’t follow this rule, then you cannot follow those.
2.
Moot Your Briefs And Argument
Many attorneys moot their arguments, but relatively few seek
input on their briefs from colleagues with no dog in the fight to moot the
draft brief. One judge with whom I spoke
was firm in his conviction that best practices demand that you allow briefs to
be reviewed by other experienced colleagues.
3.
Moot Your Briefs and Argument AGAIN
Having participated in scores of moots of colleagues
preparing to argue their cases, there invariably is more than one moot. The first moot is usually an intense affair
and often identifies substantial additional issues and approaches. The second (and sometimes third) moot is
useful to further refine those points. In
most cases, I am later told that the moots were substantially more difficult
than the oral argument itself – which is the goal.
4.
Standard of Review
The proper standard of review is outcome determinative in
many cases. The judges know this, and
you can expect the standard of review to play a significant role in many oral
arguments, even if it is only “behind the scenes”.
5.
Civility
Like Rule 1 “Know When to Shut Up”, above, this one
emphasizes the need to maintain a proper level of decorum in the
courtroom. More specifically, you should
show respect not just for the Court, but also for your opponent. Do not engage in name calling, sniping, cheap
shots, or other personal attacks. You
are here to argue the merits of your case, and you should not allow anything to
distract the Judges from those arguments.
If you begin to fling mud, most of it will land on your own arguments.
6.
Answer the Questions
This means that, first, you should listen carefully to the
questions (see Rule 1 “Know When to Shut Up”).
If the question is susceptible to a “yes” or “no” response then, in most
situations, the first word out of your mouth should be either “yes” or “no”,
followed immediately by an explanation.
While you should make sure to return, at the end of your answer, to your
planned “talking points”, NEVER do so until you have fully answered the Judge’s
question. When answering, answer
directly – do not try to prevaricate or, like a politician, change the
subject. The questions are a window into
the judge’s thinking, and if you do not answer them, you can be sure that your
opponent will. If you do not know the
answer, do not “wing it.” Simply state
that you don’t know and that you will address the matter in rebuttal.
7.
Know the Record
The record is the beginning and – often – end of every case
on appeal. Live it, learn it, love it –
do not play games with it. While you
should, of course, present the record in the light most favorable to your
position (see Rule 4 “Standard of Review”), you should not distort or
exaggerate it. Your credibility as an
advocate is far more powerful than any temporary advantage you might gain
through even well-meaning shading of the facts.
You can be sure that your opponent will seize on any errors or untenable
positions as a means of undermining your stronger points, which might otherwise
be unassailable.
8.
Know Your Audience
Prior to oral argument, you should observe each judge in
action. In some courts, you will know
your assigned panel far enough in advance to view each of the assigned judges
in action. In other courts, you will not
receive such advance notice and will have to be content observing a
representative sample. Knowing how each
judge thinks will help you tailor your arguments to your audience. You should research the judges before whom
you might appear thoroughly. This
involves reviewing their decisions on the subject (of course) but also
reviewing transcripts of prior oral arguments in which they participated.
9.
Know Your Friends
Successful appellate advocates often spend a great deal of
time anticipating hard questions (see Rules 2 and 3), sometimes so much so that
they fail to recognize a “softball” when they see one. Oftentimes oral argument is used by the
judges not as a means of questioning you, but as a means of previewing their
own arguments to their colleagues. When
a friendly judge hands you an easy question, be prepared to knock it out of the
park.
10.
You Are Not Funny
Yes, I mean you.
Unless you are a successful stand-up comedian (in which case, why are
you still practicing law?), do not attempt to have a sense of humor in oral
argument. Even if a judge makes a
humorous comment or joke, do not be tempted to join in. Most likely any attempt at humor will fall
flat and, even if it does not, it inevitably cheapens the points you are trying
to make. You want the judges to view
your performance as one of studious logic, not rhetoric (see Rule 19).
11.
Review of Jury Verdicts
Increasingly, the appellate courts are called on to review
jury verdicts. In such a case, you
should learn your jurisdiction’s law on the scope of review in such cases (see
Rule 4).
12.
Review of Jury Instructions
Jury instructions can sink your boat. To reverse the lower court, you will need to
create a clear record in the jury charge session. That session can often be intense and fast
paced. Thorough preparation is necessary
if you are to have any hope of creating a clear record for appeal. To the extent possible, you should try to
anticipate the language which your opponent will request, and your objections
thereto.
13.
The First Sixty Seconds
First impressions matter.
We often form snap judgments about the effectiveness of professionals in
an astoundingly short period of time (perhaps even as little as sixty
seconds). You should make sure that
your first impression is a good one. The
first sixty seconds of you argument should be carefully rehearsed to provide
the judges with a good impression, as well as a clear, concise, and persuasive
statement of your case, as well as a roadmap to the key points you will
address. This will help the judges
understand the points you make later in the argument, and will also allow them
to ask more effective questions, which will, in turn, allow you to use your
time more effectively (see Rule 6 “Answer the Questions”). A final reason to carefully plan the first
sixty seconds of your argument is that it is the one portion of the argument
over which you have the most control.
Once the questions start coming, it can be difficult for even a seasoned
advocate to control the direction of the dialogue.
14.
Win the Battle – But Don’t Lose the War
While we, as advocates, are bound to zealously seek the best
interests of our clients, you will nevertheless need to keep at least half an
eye on the implications of your position for future cases. There are two principal reasons for
this. First, especially if your client
is a “repeat player” in litigation, how
they win can sometimes be just as – if not more – important than whether they win. A victory which results in a precedent that
might haunt your client for decades to come is not a victory. Second, the judges will certainly be
interested in implications of your position for future cases – and so you must
be prepared to explain what those implications are.
There are several common issues which arise when discussing
the future implications of a ruling, some of which are addressed below.
a.
The “Sluice Gate” Argument
The ruling will open the “sluice gates” of litigation,
bogging the courts down in an endless quagmire of meaningless, and purportedly
unresolveable, legal issues.
As the plaintiff-appellant, or as plaintiff-appellee, you
will need to be prepared to respond to this argument thoroughly with relevant
facts. Particularly useful in this
regard can be examples of similar changes made by past precedent, or rules
similar to the one which you are propose, which did not lead to a flood of
litigation.
b.
Burden on Taxpayers
The ruling will so increase the costs of administering some
governmental function that it would noticeably burden the taxpayers.
Again, you should be prepared with law and facts to respond
to this argument. In this area,
particularly, it may be that journals and other relevant literature might be
used in your brief and argument to bolster your position. As always, when using such sources (and
especially statistics), you should be thoroughly familiar with the opinions of
your court regarding the relevance and usage of such evidence in an appellate
context.
c.
The “Anti-Business Climate” Argument
The ruling will so offend the business community that they
will pack up shop and move somewhere else.
One retort to this argument can be the simple fact that the
District of Columbia is a vibrant business community.
15.
Do Not Exaggerate (It Would Be The End of the
World)
The most persuasive aspect of your presentation is not your
arguments – it is your credibility. The
moment that you are caught exaggerating the record (which you should know cold
– see Rule 7) or the law, you will lose that credibility with the panel.
16.
Counsel’s Table
This is one rule where there was some disagreement. My own experience, and those of some
individuals with whom I have spoken, is that having anyone sit with you at the
counsel’s table is, at best, a distraction.
Others, however, have indicated that an assistant who can pass brief
notes is not a meaningful distraction, and that judges understand that few
advocates possess the level of recall needed to effectively “go it alone”.
That said, there was one point of agreement – leave your client at home. Lawyers whose clients are in attendance may
feel the need to grandstand to impress their clients – which can only detract
from the quality of their arguments.
Your client is free to review the transcript later or even listen to the
argument contemporaneously in jurisdictions where that option is available.
17.
Framing the Appeal
Returning to the suggestion that you moot your briefs (Rules
2 and 3), you should also moot the nature of your appeal. What are the issues in the lower court which
you can win on, what if done wrong, can be a basis for reversal?
18.
Follow the Rules
Details matter. You
should know the rules of the Court and follow them scrupulously. This applies not only to crucial procedural
issues, but also to the minutiae of font size, pagination, and required
disclosures. Disregard the rules at your
peril.
It is worth emphasizing that your briefs should be letter-perfect
– no typos. Not only will typos distract
the judges from your argument, but they also demonstrate a lack of care that
may make the judge question the amount of attention paid to the substance of
your argument.
19.
No Rhetoric
You should rely on facts and law in your argument. Leave the bloviating at home. The judges are neither your client nor a
jury, and they are unlikely to be swayed by rhetoric. As with other rules here,
the simple fact is that rhetoric is a distraction from, and cheapens, your
argument.
20.
Have a Conversation
Look the judges in the eye when you are speaking. Do not be captive to your notes, and instead
focus on paying attention to the judges, identifying their concerns, and
addressing them. If you must take notes
to the podium, keep them brief, and general – a reminder of your roadmap, not a
straightjacket.
21.
Dress to Blend In
Sometimes the squeaky wheel gets the grease – but in Court,
the nail that sticks up gets pounded down.
You should dress professionally and in a manner that does not draw
attention to yourself. Anything that
draws attention to you distracts from your argument.
22.
Listen to What is Troubling the Judges
This is part and parcel with knowing when to shut up (Rule
1) and having a conversation (Rule 20).
The most important information you get during oral argument comes from
the judges themselves. The questions
will tell you what they view as important – or irrelevant – to your
matter. They may also provide clues into
internal disagreements on the panel. A
wise advocate listens carefully and is familiar enough with her arguments to
tailor them on the fly to address what is on the judges’ minds.
23.
Tell a Compelling Story
Those first moments are your chance to encapsulate what this
case is all about. Tell that story in
just a few sentences – and make it compelling!
24.
Think Like a Defense Lawyer
As an employee-side lawyer, you can become a victim of the
syndrome of talking to yourself.
Instead, you must think like the other side – management. You actually can be a better advocate for
management because you are intimately familiar with all of your weaknesses –
especially after mooting your briefs and arguments twice (see rules 2 and
3). Ask yourself the hard questions, and
prepare the answers.
25.
Know the Defense Cases Better than They Do
Read their cases and be prepared to address them. If possible, explain how they support your
own position.
Please be sure to visit our website at http://RobertBFitzpatrick.com
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