Just Don’t
“O’erstep not the modesty of nature. . .The purpose of playing. . .was and is, to hold, as ‘twere, the mirror up to nature.
”
“Will you see the players well bestowed? Let them be well used, for they are the abstract and brief chronicles of the time.
”
As the sculptor removes the parts of the stone that do not serve their vision, so must the appellate practitioner whittle away habits that diminish their performance as the abstract chronicler of their brief in oral argument. Hence I offer you ten “DON’TS” to hone your skills. (There were fifteen, but I dropped one of the tablets coming down the mountain.)
TEN DON’T’S IN ORAL ARGUMENT:
1. DON’T be boring. Nobody, including a judge, enjoys a lifeless lawyer parroting a mediocre brief. Don’t simply read your brief. Don’t repeat yourself, unless you mean to do so for impact. Sound like you care.
2. DON’T assert your weaker positions or argue your weaker issues. Let your opponent or the panel raise them if they must. There is no rule requiring you to highlight your weaknesses. (Note, if they are weak, why are they raised at all!)
3. DON’T incorrectly cite the record or authority. If your opponent incorrectly cites authority, point it out respectfully (and you’d best be right!).
For example:
My opponent stated that the domestic dispute resulted in my client’s younger brother being arrested, but that is correct. The record shows that it was my client’s older brother who was the one taken into custody.
4. DON’T say, “I will get to that in a minute” when asked a question. Answer questions directly, completely, and immediately.
5. DON’T argue to the appellate court as you would to a jury. Clarify your case to judges. You can make subtle appeals to emotion, but pathos isn’t the objective here. Judges are human. They want to do the right thing, to interpret the case correctly. “Right” in their world is the world of the applicable law, and the public policy underlying that law. State your position to fit it. But don’t focus on how they should “feel” about it.
6. DON’T sacrifice credibility asserting weaker positions, or refusing to make obvious concessions to problems in your case. Instead, be ready for those kinds of questions, and pivot quickly from your concession to say that you still win because…. All you have is your credibility. You must live to fight another day.
7. DON’T rush. Speak candidly and methodically. Keep your poise. (I wish I did not rush, but I get excited sometimes! Arrghhh!)
8. DON’T wear improper attire!!! The Dude definitely does NOT abide in the Court of Appeals.
9. DON’T guess. If the panel asks you a question you can’t answer, admit it. Mitigate this scenario by brainstorming every question they might ask (mock oral argument is great for this.) If necessary, offer to write a supplemental brief if it would help the Court. (See the previous blog about a Sur-reply.)
10. DON’T introduce your client, if present, to the court. Oral argument is not a meet-and-greet. You should, however, tell the court who you represent: “My name is Donald Capparella and I represent the Plaintiff, the ‘widow’ Douglas.”
