As promised, here is the second part of my thoughts on preparing and presenting an appellate argument:
SHOW SOME COJONES. You are never arguing to one judge on appeal. Let’s say it immediately becomes apparent that a member of the panel hates your argument. They come right after you with hard questions. Don’t back down. You are an advocate. You aren’t getting paid for your ability to show up and agree with the court. Your job is to forcefully and passionately advocate for the result your client needs, in a respectful, logical way. Plus, you do not always know what is going on. Maybe the judge grilling you is the only one on the panel who thinks you are wrong. If they back you down, you may well hurt your case with the silent majority of judges who are watching. Maybe your questioner agrees with you, but the questions are designed to show unsure members of the panel why your argument stands up under duress. You are there to make an argument. Make it. BE PREPARED TO ADDRESS ADVERSE LAW. Learning and applying the cases that support your argument is easy- especially if you wrote the brief. It is more difficult and equally important (perhaps more) to be able to distinguish the cases your opponent relies on and explain to the court why they should not control the result in your case. There are a few ways to do this. Are the facts substantially different? Are there policy reasons they should not apply? Do they rely upon different substantive law, or was the procedural posture radically different? What I do is I sit down with a yellow pad. I read and highlight the opinion without taking notes.
Then I write a detailed summary of the case and its holding. In the margin I make notes on all the possible ways to distinguish the case. Generally, you will only be concerned with ten or so cases, unless you are arguing something truly complicated. After summarizing all the cases, I prepare an outline with only my bullet points on how to distinguish each. Now I have an easy cheat sheet that goes in the folder I take to the podium. Even if I draw a blank mentally, a quick glance down has me right back on track.
NO INTERPRETIVE DANCE. You are not in front of a jury, and you are not Jennifer Beals in Flashdance. Moving around and waving your arms does not impress the court, and it can be pretty distracting. You want them to focus on your argument, not how well you approximate the Electric Slide. I tend to be a fidgeter, so I revert back to all those years in Catholic school. When I don’t know what to do with my hands, I fold them in front of me. For a great way to drive this home, get a video of yourself arguing, if one is available. The Maryland Court of Appeals webcasts all oral arguments. I have found watching myself to be very valuable in terms of self-scouting.
KNOW WHAT YOU WANT THE OPINION TO SAY. One member of the court in my last case asked both sides to tell him what we thought the paragraph of the opinion right before the statement of the holding should say. I think this is the essence of what you are there for. By the time of argument, if you do not know the analysis you want the court to apply, and how that analysis applies to your facts, you have messed up big time. All this means is that you should be able to summarize your argument in about a paragraph. In my briefs, normally, I have something very similar to this in my conclusion. Or, if you have briefed it right, the substance of this may be found by reading the section headings like an outline.
SKIP THE INTRO. I do not begin an argument by introducing myself, summarizing the facts, explaining who the parties are, or any other preliminary B.S. like that. The court knows who I am. That is why the panel chair just indicated it was my turn by looking at me and saying “O.K., Mr. Bratt?”
I am sure that there are as many ways to do this as there are attorneys practicing appellate litigation. So if anyone has some other ideas, I would love to hear them.