Appellate Advocacy Blog

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

Monday, November 27, 2017

How to win an appellate or holiday dinner argument

Happy belated Thanksgiving from the Appellate Advocacy Blog.  I had intended to write a short post on Thanksgiving day, but those plans got lost in the bustle of the holiday and visiting family.  

My intended post was going to cover a great little piece by Bill Murphy, Jr., entitled "10 Ways to Win the Thanksgiving Argument." In the piece, Murphy, provides 10 tips on how to win the Thanksgiving dinner argument because, as Murphy puts it "it there's anything worse [than] a big argument at Thanksgiving dinner, it's losing a big argument at Thanksgiving dinner."

Since most people must endure at least one more holiday dinner in December, I decided to post on the article even though Thanksgiving is over (just read Christmas or Hanukkah in place of Thanksgiving).  Furthermore, since Murphy is a recovering appellate and trial attorney turned writer, his advice can help in the courtroom too. While I encourage you to read Murphy's entire piece, I would like to highlight the pieces of advice that resonated with me.

  • "Know the facts."  When I was clerking, I was astounded at the number of times I saw an appellate attorney unable to answer a simple question about the record. The attorney usually said something like "I am sorry your honor, I don't know the answer.  I was not the attorney below."  The judges were never impressed with that response.  Appellate attorneys must know the facts.  Likewise, as Murphy explains, when it comes to the holiday dinner argument:

Gone are the days when you could bluff your way through an argument; now every person at the dinner table has a handheld device that connects to the entire history of the world's collective knowledge. So know the facts you'll be drawing on, cold. For an added bonus, anticipate the facts your opponent will rely on, and know them as well.

  • "Frame the debate."  Appellate cases need a theme--a statement that summarizes the legal and equitable heart of the case.  As Murphy explains, "[i]t's really the question of what you're actually arguing about."  Just like you should think of your appellate theme from the very beginning of the brief-writing experience, Murphy encourages you to think about how you will frame the dinner debate ahead of time.
  • "Anticipate the other side's argument."  Just like attorneys do mock appellate arguments to prepare for the big day, Murphy advises that you might consider some preparation for your holiday dinner argument.  He states "if you anticipate that your argument will be with your 19-year-old sophomore niece, who absolutely loves Sen. Bernie Sanders, maybe read a couple of articles written by Sanders supporters before dinner."
  • Finally, "[p]ull your punches and save face."   Just like you just need to win your case for your client, you need not go "for total annihilation" at the holiday dinner argument.  Murphy advises to,

build exit ramps into your argument where you can concede that the other side has made some interesting points. Find ways to help your opponent save face. In truth, if you really employ the contents of this article and other argument preparation resources, you'll be way ahead of your opponent and probably win hands down. But you want to be sure she can concede and walk away without feeling stupid.

The rest of Murphy's advice is really quite timeless, both for the courtroom and the dinner table.  Happy holiday season!

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Great advice! The final piece of advice you relate above--saving face--I think is tough for many lawyers. But every judge I've talked to emphasizes the importance of maintaining your credibility with the court. Both for the sake of your current client and future ones. Every great attorney I've ever watched is good at building credibility using moves like this. Thanks for the article!

Posted by: joe Regalia | Nov 28, 2017 8:50:40 AM

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