Friday, February 28, 2020
Every appellate practitioner knows oral argument rarely changes a case outcome. See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003). However, whether you are a first-year law student, certified appellate specialist, or advocate between those levels of experience, you probably still spend a great deal of time prepping for oral argument. This time can be hard to justify to clients, but an advocate must be prepared for oral argument. See generally Cal. Rules of Ct., R. 1.1, 1.3 (2018).
In my last post, I suggested ways to use off-brief oral argument techniques to improve your brief writing. For this post, I propose using an early, short, oral argument prep before filing the brief as a way to streamline your oral argument preparation while also improving your brief. Using this technique can make your oral argument preparation time more useful, shorter, and easier to justify to clients.
In my advocacy classes, I tell my students to distill their oral argument points to one piece of paper, or something very similar. My “one piece of paper rule” forces students to take the main points from their briefs and organize their arguments in one place. This process requires students, and counsel, to review the briefs and record, reread key cases, and be familiar enough with all aspects of the case to synthesize their points on one page. Along with the paper, I recommend students have one binder with their case charts, all briefs, copies of any key pages from the record, and extra paper for notes during the opponent’s argument. The binder should be tabbed and organized for very quick reference. The process of making the binder is also very useful for both final brief editing and oral argument preparation.
On a practical level, my one piece of paper rule also keeps students from reading from their briefs or reading a longer, prepared statement to the court. Since most courts either ban or strongly disfavor counsel reading from briefs or papers at argument, this is a good lesson to learn early. See, e.g., 5 Am. Jur. 2d Appellate Review § 501 (2d Ed. Feb. 2020). Additionally, an advocate who has organized his or her thoughts well enough to note them on only one piece of paper is unlikely to make the mistake of carting a box of scattered materials to counsel table. One piece of paper is easy to follow under pressure, and can help counsel get back on track smoothly and confidently when the court’s questions move away from main points. Advocates also have an organized binder if they do need to check something quickly.
In content, the one piece of paper should include bullet point arguments on each prong, element, or claim, noting the best points for the advocate’s side. The paper should also have bullet points on counsel’s best responses to his or her opponent’s brief.
I recommend students create their one sheet by first copying over their point headings from the brief Table of Contents. Then, students should take the key points from their Introduction or Summary of Argument, and weave these ideas, all with a focus on their theory of the case and key case law, into bullets under each point heading. I ask my first-year students to make this page before turning in their briefs. I suggest they then use the paper as an editing checklist for the brief. The process of distilling the whole case onto one page can reveal holes in the students’ briefing and help with final brief polishing. Practitioners would reap the same benefit in brief writing from doing an initial oral argument preparation shortly before filing a brief.
In the law school setting, making the oral argument sheet before filing the brief is also efficient. First-year oral arguments come shortly after the brief writing, and students can easily review the one piece of paper they prepared as a brief editing tool and be ready for oral argument.
In practice, however, we often wait months after filing a brief for oral argument. Nonetheless, creating an initial one sheet for argument before filing the brief can still be efficient and helpful in practice. By creating the one page when most familiar with the record and the law, in the midst of brief polishing, counsel can ensure he or she does not miss any key points for later oral argument. Also, while attorneys will still need a refresher on the facts and law before oral argument, following an outline created while drafting the brief will streamline the review process, leading to better preparation in a shorter time. Finally, creating this type of one sheet for the whole appellate case before filing the brief can make final edits of the brief more useful, ensuring the brief is as perfect as possible.
For all of these reasons, consider taking a quick break from your usual brief editing to create one piece of paper for oral argument, or anything similar that works for you, with an organized binder. Doing so can show where you have missed something in briefing and can save time later.