Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, November 25, 2013

Does Style Matter?

As I was embarking on a whirlwind week of oral arguments, the capstone of a time-challenged semester of teaching appellate advocacy, I was asked, "Does style really matter?"  The inquisitive person continued..."I mean, if the law is on your side, why should you care about things like diction, vocal variety, proper attire, pregnant pauses, and the like?"  What followed was a very interesting discussion on the topic.

One one hand, there is merit to the logic that the only thing that matters is the law.  If the rule of law supports an advocate's position, the chances of losing should be remote.  Few would debate this proposition.  Few would debate that the opposite is also true.  Indeed, I can vividly recall one of my most passionate arguments before the court.  After I finished, one of the judges quipped, "Nice argument counselor.  Now, do you have any case law to back it up?"  I didn't.  I hoped my advanced Toastmasters skills would save a sinking case.  No such luck.  The law mattered more.  

On the other hand, I have certainly seen good cases lose and bad cases win.  Another reality is that it is not often that a case is 'open and shut' on the legal merits.  Normally, there is relevant and legitimate legal arguments to be made by both appellant and appellee.  After all, this is why splits in the circuits exist.  Reasonable minds can disagree on statutory and "precedential" interpretation.  I am convinced that in these instances, just like in instances of first impression, style matters.  

When thinking about people that are at the top of their profession, style likely played almost as large a role in getting them there as their substantive knowledge.  It is one thing to be a genius, but quite another to be able to communicate that genius in a manner that those with less knowledge can understand and appreciate your position.  This is what separates the leaders from the role players.  Style.  If a person's style is engaging and entertaining, I am more likely to actively listen and inquire.  If the style is replete with ahhs, umms, restarts, stammering, lack of eye contact, nervous twitches and the like, my brain is more prone to start thinking about what is for dinner rather than what is being communicated to me.  This logic also falls neatly in line with 

Advocates should spend the vast majority of their time learning the law.  But they certainly should dedicate some time to perfecting their style of delivering the law as well.  When it comes to oral argument, while justices debate the relevance and the effectiveness of it, if style can have even a scintilla of an effect on the ultimate outcome, doesn't it matter?!

https://lawprofessors.typepad.com/appellate_advocacy/2013/11/does-style-matter.html

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Comments

For one thing, mere points of "style" like good spelling can affect a reader, who may take an advocate's intelligence less seriously if reading a brief with misspellings like "genious" and "psintilla." ;)

Posted by: Anderson | Nov 25, 2013 1:23:43 PM

Thanks for the comment. I should have known better than to post early in the morning following a medical procedure. I will certainly be more diligent next time. Enjoy your day.

Posted by: Kendall D. Isaac | Nov 25, 2013 2:01:33 PM

In my experience, style, in writing or oral argument, is expected by the appellate justices. Its presence is not outcome determinative, but its absence is at best a distraction to the justices and at worst, a case killer.

Posted by: Jeff Lewis | Nov 26, 2013 1:53:29 PM

Very astute observations. While this post focuses primarily on oral argument, the analysis does relate to written briefs as well.

Posted by: Kendall D. Isaac | Nov 26, 2013 2:11:32 PM

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