Appellate Advocacy Blog

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

Saturday, December 26, 2020

The Power of The Rule of Three

Law professors, lawyers, and judges have spent countless hours, whether in law review articles, textbooks, at conferences, or in continuing legal education sessions, providing advice regarding legal writing skills, legal analysis, brief-writing, and persuasive advocacy.

Yet, despite this helpful and practical guidance, law students often struggle to develop effective persuasive writing skills. Law graduates – and seasoned lawyers – frequently face criticism of their writing skills, and judges often lament the less-than-persuasive nature of many pleadings, motions, and briefs. And for good reason. Many trial and appellate briefs, for example, lack a cohesive structure, fail to tell a compelling story, lack precision and concision, violate grammatical rules, contain unnecessary repetition and information, and simply fail to convince the reader to rule in favor of the drafter’s argument.

Having said that, for law students and lawyers who seek to immediately and significantly improve the persuasive value of their briefs, there is one strategy that you should adopt from this day forward: The Rule of Three.

The Rule of Three is simple yet incredibly effective. In the Introduction (or Summary of Argument) section of your brief – and throughout your brief -- identify three specific reasons (and only three reasons) supporting the relief or outcome you seek. And state these reasons with specificity, clarity, and conciseness using First…Second…Third…

Here is an example:

***

Defendant – a well-known tabloid that lacks journalistic integrity – defamed the plaintiff when defendant published an article – to an audience of over one million readers – stating that the plaintiff “was a pathetic attorney who didn’t know the law, preyed on the vulnerabilities of unsuspecting clients, stole their money, engaged in unlawful hiring practices, and repeatedly made inappropriate advances to several clients.”

The defendant’s comments were defamatory for three reasons.  First, the defamatory statements are false. Second, the defamatory statements damaged severely the plaintiff’s reputation and standing in the legal community. Third, the defamatory statements caused the plaintiff to suffer substantial, ongoing, and irreversible, harm.

***

After stating the three reasons supporting the remedy you seek, you should dedicate the next three paragraphs (in the Introduction or Summary of Argument) to relying on the relevant facts or evidence that support each reason. Thus, for example, you should draft one paragraph explaining why the statements were false. Then, you should draft a second paragraph explaining why the statements damaged the plaintiff’s reputation and standing in the legal community. Thereafter, you should draft a paragraph explaining why the plaintiff suffered reputational and economic harm. After that, draft a one-sentence conclusion stating “For these reasons, the defendant’s article was defamatory and thus entitles the plaintiff to damages.” Done.

Also, make sure that your point headings track the three reasons you identify at the outset of your brief. Doing so ensures that your brief will be cohesive, well-organized, and easy to read.

Why is the Rule of Three so effective?

1.    The Rule of Three simplifies your arguments

Judges are very busy. They want to know – quickly – what you want and why you should get it. Briefs that confuse judges or make judges struggle to discern your legal arguments damage your credibility and reduce the persuasive value of your brief.

The Rule of Three avoids this problem. It makes it easy for judges to identify your arguments and evaluate the evidence in support of those arguments. As such, the judge will like you for making his or her job easier. The judge will view you as a credible attorney and give you the benefit of the doubt throughout the litigation. And, ultimately, your client will thank you when you win the case.

2.    The Rule of Three organizes your arguments

The worst briefs are often those that go on…and on…and on…

The worst briefs read like a rambling manifesto that contains a barrage of loosely related thoughts that are jammed into long paragraphs with no separation of the concepts, arguments, or allegations. In short, it is chaos. It is easier to navigate one’s way out of a forest or maze than it is to navigate the arguments that such briefs present.  

The Rule of Three eliminates this problem. It’s quite simple. Say, “First…” and state your argument. Say, “Second…” and state your argument. Say, “Third…” and state your argument. Then, in the next three paragraphs, explain each argument in a separate paragraph – and include each argument as a point heading. Doing so ensures that your arguments will be organized and presented clearly, understandably, and effectively.   

3.    The Rule of Three appeals to the audience’s cognition and psychology

Let’s face it: listening is hard. Paying attention for a prolonged period is difficult. Remembering what we have heard is often challenging. So how do you draft a brief or make an oral argument that will maintain the audience’s attention and convince the audience to adopt your position?

Studies in social and cognitive psychology demonstrate that people respond positively and attentively to arguments that are delivered in sets of three.

The rule of three is ubiquitous. Humans are both neurologically and culturally adapted to the number three and its combination of brevity and rhythm. We know from studies in neuroscience that our brains seek out patterns and finds the structure of three to be a complete set; it feels whole. Three is the least number of items in a series that make a pattern, and once you start looking for this pattern, you’ll see that it’s everywhere.  In mathematics it’s a rule that allows you to solve problems based on proportions. In science there are three states of matter: solid, liquid, and gas. The Latin maxim omne trium perfectum (everything that comes in threes is perfection) echoes Aristotle and his Ars Rhetorica. There Aristotle posits that the most persuasive rhetorical appeals must rely on ethos, pathos, and logos. Extrapolate from that, and even simple storytelling and narratives have a simple structure of a beginning, a middle and an end.[1]

Simply put, the Rule of Three embeds a cohesive structure into your arguments that enhance their readability, appeal, and persuasive value.

Ultimately, the Rule of Three reflects the principle that legal communication (and communication generally) is less complex than you think. It’s about common sense. Use the Rule of Three in your briefs and oral arguments. It’s that simple – and very effective.

Below are a few videos regarding the Rule of Three.

(1) The Rule of Three: a top speechwriter explains... - YouTube

The Rule of Three - A Law of Effective Communication - YouTube

(1) Steve Jobs: 3 Lessons From The Keynote Master - YouTube

 

[1] Brad Holst, Want Your Presentation to Be Memorable? Follow the Rule of Three, available at: Want Your Presentation to Be Memorable? Follow the Rule of Three (mandel.com)

December 26, 2020 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric | Permalink | Comments (0)

Monday, December 21, 2020

On Semicolons and Interrobangs

I am spending the final days before the holidays reviewing and editing two major projects. One is a book on online law teaching that I am co-editing with Prof. Tracy Norton at Touro Law.  The other is the first issue of The Journal of Appellate Practice and Process that will be published by the University of Arizona James E. Rogers College of Law.  For this second project, I am looking at the final proofs of the articles for exciting things like missing commas, incorrect supra references, and missing en-dashes.  For a legal writing nerd like me, it is pretty fun, albeit exhausting.  What makes it even more fun is that I am collaborating with my friend and colleague Prof. Diana Simon.  

In the spirit of editing, proofing, and a love for punctuation, I wanted to share Diana's forthcoming (short)article in The Arizona Attorney on semicolons.  The article will appear in the February 2021 magazine, or you can read it here. In the article, Diana argues for the elimination of the semicolon. Calling them "snobs and elitists," Diana gives a brief history of the semicolon--including the mark's connection to the Son of Sam killer.  She then shares why it is time for the semicolon to go. Among other reasons, many law students today are not well-versed in punctuation and grammar in general, much less the “complex labyrinth of the semicolon.” Further, there are alternatives to the semicolon, and, she suggests, if we can eliminate the semicolon, the “snobbish semicolon worshippers can satisfy themselves knowing that the comma . . . should be a semicolon and pause the extra second, while the anti-semicolon populists . . . can silently cheer that the semicolon is gone for good.” In short, everyone wins. She makes a convincing case!

In editing book chapters and articles for The Journal, I have been struck several times by how authors develop a "pet" punctuation mark or word. From colons to em-dashes to filler words, I have seen it all.  I am sympathetic.  I know that I have my favorite words and punctuation styles.  It has been even more apparent now that my 2 year old is talking.  Do I really say "ok" that often?  Ok, yes I do.  

In addition to her discussion of the semicolon, Diana's article taught me that there is a punctuation mark that is definitely missing from my life, the interrobang.  As she explains, "the interrobang, was created to combine a question mark and an exclamation point. It looks like this: ‽ While this might seem like a good invention, it never quite caught on . . . ."  Why on earth did it not catch on‽ It seems to fill a real void in my punctuation life.  So, perhaps I will exchange my use of the semicolon with commas and start working on revitalizing the interrobang.

 

 

December 21, 2020 | Permalink | Comments (0)

Friday, December 18, 2020

Appellate Advocacy Blog Weekly Roundup Friday, December 18, 2020

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court refused to hear an Indiana appeal that sought to reverse the Seventh Circuit ruling that Indiana’s limitation on who can be listed as a parent on a birth certificate was unconstitutional. The Seventh Circuit found that Indiana discriminated against same-sex couples by presumptively listing the husband on the birth certificate of a heterosexual couple but refusing to list the spouse on the birth certificate for a same-sex couple. The Court’s refusal to hear the appeal leaves in place the Seventh Circuit opinion and means that, in Indiana, both spouses in a same-sex couple can be listed on the birth certificate. See reports from The Indianapolis Star, NBC News, and Slate.

  • The Supreme Court reversed a 2018 ruling from the Court of Appeals for the Armed Forces that applied a five-year statute of limitations to military rape prosecutions. The lower ruling resulted in the dismissal of rape convictions for three Air Force personnel. The Supreme Court reversed the ruling, upholding the three convictions. The Court found that the military code weighed “heavily in favor of the government’s interpretation” to prosecute rape claims going back to the 1980s. See the opinion and reports from The Hill and Military Times.

  • The Supreme Court dismissed the lawsuit challenging the attempt to exclude unauthorized immigrants from the census count, ruling that the challenge was premature. The majority ruled that the “case is riddled with contingencies and speculation that impede judicial review.” Justice Breyer’s dissent, joined by Justices Kagan and Sotomayor, points out that “[t]he plain meaning of the governing statutes, decades of historical practice[,] and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. . . . I believe this court should say so.” Justice Breyer continues, “[w]here, as here, the government acknowledges it is working to achieve an allegedly illegal goal, this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.” See the opinion and reports from NPR, The New York Times, CNN, and The Washington Post.

    A tribute to Justice Ruth Bader Ginsberg was announced this week. Patterson Belknap introduced a podcast reviewing her legacy, called “Notorious: The Legal Legacy of Justice Ruth Bader Ginsburg.” See the news release here and the podcast here. 

Federal Appellate Court Opinions and News

  • The First Circuit ruled that the Massachusetts wiretapping statute that prohibits secret recording does not apply to police officer, thus ruling that individuals may secretly record the police.  See reports by NYU’s First Amendment Watch and CommonWealth.   

  • The Tenth Circuit ruled memes were acceptable intrinsic evidence” of the defendant’s facilitation and solicitation of prostitution. The memes were various references to “pimps” and “pimp culture.” The court admitted the memes not as character evidence, which would be improper under the Federal Rules of Evidence, but as evidence intrinsic to the crime of prostitution because the memes declared the defendant to be in the business of trafficking prostitutes. The memes were determined to be readily viewable by others and to constitute the defendant’s social media brand. See the order and a blog post by the Evidence ProfBlogger and reports from Colorado Politics, Law360 (subscription required),

Other News

The Federalist Society hosted a virtual event called “Court-Packing, Term Limits, and More: the Debate over Reforming the Judiciary.” Find a video of the event here.

December 18, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, December 13, 2020

Tips for Zoom Court & Moot Court: Follow In-Person Best Practices Even More Closely

Tired of online court, school, happy hour, family holidays, and more?  Me too.  However, we also know some form of virtual court is here to stay, and based on the number of great pointers judges from across the county have shared with us this month, we can all still improve. 

Moreover, in reflecting on the tips I’ve seen lately, I was struck by how many of these pointers apply to any argument, in-person or virtual, and how they track what we have long told law students in moot court.  As we evolve from a largely in-person court system, where we had some telephonic and online conferences, to our future, which could involve many more electronic appearances, we should not lose sight of those moot court pointers from law school. And for those of us teaching oral advocacy, we should remember to share best practices for preparation and professionalism which will serve our students in any argument, online or in-person.

Recently, Judge Pierre Bergeron shared helpful tips on preparing for oral argument.  You can see his blog here:  Judge Pierre Bergeron's Tips.  He advises counsel to practice, with a moot court if possible, know the record and case law, provide a roadmap of argument points at the beginning, and be especially cognizant of the need to pause periodically “in an effort to invite questions.”  Id.  These tips apply equally to in-person arguments. 

Similarly, Madison Alder’s piece for Bloomberg Law, Wear Pants, Sequester Pets: Five Tips From Judges for Zoom Court, has excellent advice from judges for online arguments and court appearances in general.  See Madison Alder, Wear Pants, Sequester Pets (Bloomberg Dec. 8, 2020).  As Alder notes, the “virtual venues have worked so well,” some “courts plan on using them long after the virus is gone.”  Id.  Therefore, all lawyers who appear in court need to be as proficient in online argument as they hopefully are for in-person proceedings.

Online court platforms vary (federal courts often do not use Zoom, for example), just like courthouses, and “’Lawyers should prepare themselves for venues they’re not familiar with,’” said Chief Judge William Johnson of the District New Mexico.  See id.  Thus, “preparing a presentation ahead of time is still crucial.”  Id.  Just as in traditional courthouses, counsel should practice standing at a podium or sitting and looking directly at a webcam.  See id.  I advise my students to distill their oral argument notes to just one piece of paper, supported by one binder of organized cases and record pages to take to the podium, and that format works well online, where paper shuffling can be magnified on Zoom. 

Somehow, despite myriad reminders to dress professionally, we still hear frequent complaints from the bench about attorney attire.  Alder recommends:  “Dressing properly means wearing professional attire from head to toe, not just head to waist.”  Id.  “’You never know when you’ll need to stand up in a pinch, which can make for an embarrassing moment if you’re wearing shorts,’ Illinois Supreme Court Chief Justice Anne Burke said.”  Id.  The key:  “’Besides the same make-sure-you’re-communicating-well lessons that apply in a courtroom—is remembering that this is a courtroom and a formal proceeding. Zoom can make people less formal,’” Southern District of Texas Chief Judge Lee Rosenthal said.  Id.

We teach law school moot court advocates not to read from notes, allowing them to “read the bench” and make eye contact with judges.  This lesson matters even more for online arguments, where the format makes true eye contact impossible.  To be as present as possible, online lawyers (and students) should “make sure they do things like keeping the dogs in the other room, closing the window if the lawnmower is going, and making sure their children aren’t there,” said Chief Judge Rosenthal.  Id.  

Finally, we all need to be more attentive to virtual context clues in online arguments.  “The virtual platform makes it more important for lawyers to pay attention to the tone of a judge’s voice, Jed Rakoff, a senior judge in the Southern District of New York, said.”  Id.  Tuning in to a judge’s tone is important for lawyers “’because that’s the main remaining clue as to whether they’re scoring or not,’” Rakoff said.  Id.  As Eastern District of California Chief Judge Kimberly Mueller explained, “It’s as important as ever to pay attention to the judge’s signals, so if you are talking too long, be ready to wind up.’”  Id.  And, using Judge Bergeron’s point on pausing to allow questions, online advocates should watch for judges’ body language showing they are about to unmute or ask a question. 

In my house, with two adults working full-time online and a high school student taking online classes while managing a Zoom social and extracurricular schedule, we are weary of an online-only world.  I know many law students and lawyers feel the same way.  But at least we can find a silver lining (in addition to the great commute) from the online court experience, as the skills we must hone for the best online arguments will make us better advocates in-person too.  

Be well!

December 13, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Friday, December 11, 2020

Appellate Advocacy Blog Weekly Roundup Friday, December 11, 2020

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

Supreme Court Opinions and News:

This week, the Court rejected an appeal from parents challenging a school policy that allows transgender students to use bathrooms aligned with their gender identity.  In rejecting the appeal, the Court let stand a federal appeals court decision throwing out the parents' suit against a Dallas school district.  More from Bloomberg HERE.

As Amy Howe posted on Twitter, the Court this week declined to act on President Trump's petition for review of a decision from the Second Circuit holding that the President violates the First Amendment when he blocks people from his Twitter account.

This week, the Court heard arguments in a case involving a collection of medieval Christian art on display at a Berlin museum.  In the suit, the heirs of several German Jewish art dealers sought relief, alleging that the art had been sold to the Nazis under duress.  More about the case and the arguments from SCOTUSblog.

This week, the Court heard arguments in another case involving the scope of the Federal Arbitration Act, in a repeat appearance of a case that was decided just a few years ago. The key question the Court will address is whether the court or the arbitrator is the appropriate one to determine whether the parties' dispute is arbitrable.  The case seems highly similar in that respect to the issue the Court addressed the last time it heard the case.  The summary from SCOTUSblog is HERE.

One of the more noteworthy cases heard by the Court this week was one involving "Facebook robocalls" -- unwanted text messages from Facebook -- and whether the dialing of a number from a database counts as a violation of the Telephone Consumer Protection Act's prohibition against automatic telephone dialing systems. More about the case from Bloomberg, SCOTUSblog, and Law and Crime.

This week, the Court issued an opinion holding that the Religious Freedom Restoration Act allows individuals to seek money damages from individual federal employees who violate their religious freedom.  See the opinion HERE.

Federal Appellate Court Opinions and News:

This week, the Second Circuit Court of Appeals issued a decision in a case applying the false claims act to set-aside contracts.  The ruling arguably strengthens the hand of the government and of whistleblowers in cases against companies awarded government set-aside contracts who do not meet the requirements of the particular set-aside.  See more from the National Law Review.

Appellate Practice Pointers:

Earlier this week, Judge Bergeron posted right here at the Appellate Advocacy Blog about pointers for zoom oral arguments based on his experience serving as an appellate judge for dozens of virtual arguments.  Check out his tips HERE.

Matthew Stiegler offered up a Twitter thread this week laying out several basic for competent typography that is worth checking out.

December 11, 2020 | Permalink | Comments (0)

Saturday, December 5, 2020

Can Writing Tech Help You Craft Your Tone?

Oh, technology. As much as you frustrate us, you sure make things interesting. 

While I wasn't looking, a slew of new writing technologies emerged on the scene. And three of them really caught my eye. I've been experimenting with each. And at the least, they are worth a gander. 

First, QuillBot's Paraphraser. Have you ever needed to paraphrase a quote and just not had the energy to do it well? Enter the Paraphraser. This tool automatically rewrites quoted passages. You can even use it to auto-summarize long snippets (with surprising accuracy). A menu of customization options allows you to tweak the paraphrase, including its tone. 

You might need to do some editing after. But this little tool can give you some great ideas for rewriting a sentence.

Next, try Wordtune for help hitting that perfect tone. Deep AI (machine learning, neural networks, and big data sets) have transformed quite a lot. But the potential for language processing may be one of the most exciting areas to watch. 

A new AI-driven tool, Wordtune is a fascinating example of how AI could change how we communicate. The tool uses some impressive back-end tech to subtly tweak your words to get your message and tone just right.

Tune your writing for each audience: Client, judge, or colleague. Make your point more casual, more formal, shortened, or longer. 

Wordtune can be a great way to get inspiration for your next legal writing project. It also offers a deep library of example phrases to compare your writing to others. Check out Wordtune

Finally, most of us are endless-email machines. Email automation (whether it be templates, editing programs, or full-on email generators) are among the most powerful time-saving devices for legal folks. If you pay attention, I bet you'll find that many of your emails are repetitive. At the least, they include repetitive parts. You can save so much time and angst with smart email programs.

The simplest tool is a template. If you use Gmail, templates are already built into professional plans. Save any email as a template and paste it into any new message with a click. Add-ons will do the same thing for Outlook and other platforms. 

If you're feeling more adventurous, a neat new tool worth checking out is OthersideAI. It's in a class of tools that help clean up short-hand notes or rough drafts and turn them into great prose. 

This particular tool allows you to insert some bullet points or notes. It then drafts an impressively professional email in moments.  Check out OthersideAI

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here

December 5, 2020 | Permalink | Comments (0)

Friday, December 4, 2020

Appellate Advocacy Blog Weekly Roundup Friday, December 4, 2020

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court has been asked to block the certification of Pennsylvania’s results in the 2020 presidential election. The case argues that absentee voting provisions were unconstitutional under the state constitution. Experts opine, however, that the Court’s scheduling order asking for responsive briefs one day after the Safe Harbor Deadline indicates that the case is unlikely to affect the election results. The Safe Harbor Deadline is the federal deadline for states to resolve outstanding challenges to their elections. Once it has passed, the state’s slate of appointed electors is considered to be locked in. See reports in USA Today and The Philadelphia Inquirer.

  • The Court heard oral argument about the retroactive implications of their April decision on unanimous jury verdicts. In April, the Supreme Court ruled that non-unanimous jury verdicts for serious crimes (whether federal or state) are unconstitutional. Then, the ruling applied only to future cases; the court left unanswered the question of whether the decision should apply retroactively. The current case asks whether April’s decision should apply to prisoners in Louisiana and Oregon convicted in the past by non-unanimous juries. (These are the only states that allowed such verdicts at the time of the April decision).  See reports from NPR, The New York Times, and The Washington Post.

  • James Romoser posted a thread this week about the petitions the Court is considering this week.

Federal Appellate Court Opinions and News

  • While acknowledging North Carolina’s “long and shameful history of race-based voter suppression,” the Fourth Circuit reversed a lower court and upheld the state’s law requiring voters to present photo identification before casting ballots. The court determined that the lower court had improperly considered the state’s “past conduct to bear so heavily on its later acts that it was virtually impossible for it to pass a voter-ID law that meets constitutional muster.”  See the order and reports from The Washington Post and The Hill.

  • The Seventh Circuit reinstated ex-Penn State President Graham Spanier’s 2017 conviction for child-endangerment.  The ruling determined that the lower court improperly overturned the guilty verdict about Spanier’s mishandling of claims of sexual abuse against Penn State assistant football coach Jerry Sandusky.  See the order and reports from the Philadelphia Inquirer and ESPN.

Other News

Beth Wilensky posted a thread on Twitter looking at the style and legal writing of an opinion of Third Circuit Judge Bibas. The thread points out the various ways that Judge Bibas employs good writing techniques, including using plain English and simple transitions.

December 4, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Thursday, December 3, 2020

Practice Pointers for Zoom Oral Arguments

            Since virtually every appellate court in the country is conducting oral arguments by video at this point (I’ll use “Zoom” for shorthand, since that appears to be the platform of choice), I thought it appropriate to offer a few pointers for Zoom arguments based on my experience serving as an appellate judge for dozens of such arguments. And I’ll preface this by saying that overall these arguments have gone very well—the technology has worked, counsel has performed admirably, and I think Zoom arguments have exceeded our expectations.

            Practice with the medium: Make sure that you’re comfortable with the technology, and that you have a reliable internet connection (hard-wired if at all possible). Do a virtual moot with some colleagues to ensure that you’re ready for the argument.

            Pause: Some judges are a little more reluctant to interrupt during Zoom arguments, so bear that in mind. A good practice is to pause periodically, just for a split second or so, in an effort to invite questions. Some lawyers launch into extended soliloquys with hardly a breath, which discourages questioning. You want oral argument to be a discussion so that you can tell where you need to persuade the panel.

            Know your record (and cases): When you are in court, there’s a limited amount of materials that you can take with you to the podium. For Zoom arguments, however, you can be surrounded by all sorts of record cites and cases at your desk. But be wary of this – just because you have stacks of papers does not mean you can actually locate key record cites in response to a question. Consider just having the most important parts of the record at the ready, much like you would in court.

            Backup plans: Crazy things happen in Zoom arguments. Sometimes counsel disappears; sometimes judges do. The important thing is to anticipate such problems (much like a difficult hypothetical) and know what to do if you’re cut off from the argument. Most courts have information sheets with telephonic numbers to call into in the event of a technological glitch, but if not, ask for this in advance of argument.

            Provide a roadmap: Roadmaps are always helpful for oral arguments, but I’ve found that particularly so for Zoom arguments. Some courts don’t have a clock on the screen, and it’s not unusual for judges and counsel to lose track of time. If you’ve provided a good roadmap, it might encourage questions from the judges to focus you on the arguments they’re interested in, and it may help you manage your time better.

            Seek clarification when necessary: Sometimes the judges encounter technological glitches themselves—if this occurs during a question, don’t be shy about asking the judge to repeat the question rather than risk answering the wrong question. Also, I’ve seen situations where a presiding judge may have not understood that a particular counsel was going to argue (in multi-party appeals) until too late—if you have any doubt about something like this, it’s best to clarify that you’re going to argue for x minutes and co-counsel will argue for y, or something similar.

            Good luck out there! We hope to see you in person in 2021! -- Judge Pierre Bergeron

December 3, 2020 in Appellate Advocacy, Appellate Practice | Permalink | Comments (1)