Thursday, September 16, 2021
For law students (and some lawyers) appellate argument can be a mystery. It's definitely not the first thing the average layperson thinks about when someone mentions "legal argument." Even when Law and Order made a half-hearted attempt to show an argument at an appellate court, it didn't get it right (for example, I've never gotten a ruling from the bench as soon as the argument was over). And the misconceptions about appellate argument sometimes lead to strange behavior even from attorneys: advocates objecting during opposing counsel's argument (yes, that really happens); appellant's attorneys requesting to reserve their entire time for rebuttal (I've seen that happen, too); and lawyers calling opposing counsel their "friend" (okay, some U.S. Supreme Court advocates do that and maybe some of you think it is fine, too).
De-mystifying appellate argument means not only understanding the basics but also understanding the nuances. Anyone who has ever argued in an appellate court or taught students how to make oral arguments knows the basics: make the argument conversational; be prepared for questions; smoothly return to your argument after answering a question. And, of course, an advocate should know the substance of an argument inside and out. But what are some of the finer points of appellate argument that often are missed both by advocates and students?
- Exude Confidence: Doing my best Yogi Berra imitation, I often tell students that being successful in an appellate argument is 95% knowing the facts and the law and 95% sounding like you know what you are talking about. In reality, knowing the facts and the law in depth should lead to more confidence. In the end, why should an appellate court agree with your argument if you don't sound like you believe in what you saying? Even if you aren't so sure yourself, you are representing a client expecting zealous representation. And the other side is going to have a zealous advocate, so you should be one as well.
- Control Your Body Language: Even before you say your first word at an appellate argument, your body is already speaking to the court. The body tells the truth. If you are confident in what you are going to say (see above), then approach the lectern with confidence and own the stage you have been given.
- Vary Delivery: An appellate argument should ebb and flow. Much like a singing performance is rarely effective at 100% volume throughout, an argument without variation will either put the court to sleep or, even worse, cause you to lose your case. Vary pitch, vary pace, vary volume. This will hold the court's attention, properly emphasize the points you want to emphasize, and downplay facts and law that are bad for your argument.
- Pause: Oral advocates often feel that any dead time in their argument, even a brief second or two, is bad. On the contrary, oral advocates probably don't pause enough. Some pauses are good for effect; others are good because they allow the advocate more time to reflect upon an answer. The mind works very quickly, so it doesn't have to be (and you don't want it to be) a long pause if you are trying to come up with an answer. I often suggest to students that they begin drinking some water, if available, when a question is being asked. Judges will not be thrown off by an advocate finishing their sip briefly as the question concludes. This buys just a little more time for formulating the perfect (or near-perfect) answer.
- Control Your Zone of Authority: In conjunction with the use of body language, advocates should control their zone of authority--the area immediately around them that they control. Look judges in the eye, don't break the zone by bending over or looking around the courtroom, keep gestures within the zone, and never point. As my students also always hear me say, don't take a pen with you to the lectern! You likely won't have the opportunity to write anything down while you are arguing. And you are more likely to cause a distraction with the pen by waving it around, pointing with it, or tapping it on the lectern.
- Start/Finish Strong: Start the argument with your theme and end with your theme. Grab the court's attention at the beginning. Then remind the court again what the case is really about when you conclude. Listeners (like readers) tend to remember and are more affected by the beginning and the end of an argument than what is in the middle.
The basics of an appellate argument are important without a doubt. But mastering the nuances will make an argument even more polished and persuasive.