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.
Tuesday, September 7, 2021
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fifth post in the series.
Do provide appropriate signposts:
- Do consider using headings and summaries.
- Do use transitions between sections that guide the reader from one argument to the next, especially in longer pieces of writing.
The Commission on Professionalism asks us to consider using headings and summaries, but there’s nothing to consider, we should use headings and summaries. It is always our goal to make our writing clearer and thus to make our reader’s job easier. Headings and summaries help us do that. Transitions do too. They allow our reader to move seamlessly from one topic to the next
1. Point headings make our writing better.
Headings (here we’re talking about point headings) make our writing clearer because they show the structure of our writing, convey key points, and create white space. So let’s talk about how to create useful headings.
A. Point headings are topic sentences.
Point headings serve as the topic sentences of the paragraphs that follow. They tell your reader what you’re going to discuss. Be sure that the paragraphs that follow a point heading, and the sentences within each paragraph, relate directly to the point heading. If they don’t then you need to re-think your point heading or the paragraphs that follow it.
B. Point headings should be full sentences.
Your point headings should be full sentences and they should convey substantive information. Which of these point headings is better
1. Strict Scrutiny.
2. The statute creates a class of disfavored speakers, so it is subject to strict-scrutiny review.
The second heading tells the reader the substance they should be learning in the subsequent paragraphs—how the statute creates a class of disfavored speakers and why strict scrutiny applies.
C. Point heading should look like sentences.
Because point headings are full sentences, they should look like sentences. They should not be written in ALL CAPITAL LETTERS, nor should they be written in Initial Capital Letters. Save those styles for your section headings.
D. Point headings are not just for the argument section.
Point headings are helpful in the fact section of briefs too. Again, they convey substantive information, show the structure of the fact section, and create white space. Here is an example:
1. In 2007 the National Parties negotiated a new collective bargaining agreement that contained a two-tier wage system.
The sentences that follow that point heading explain how and why the National Parties negotiated a two-tier wage structure.
E. Point headings serve as a check on your analysis.
If you’ve created good point headings, you should be able to look at them and understand the structure of your argument. If you can’t, then you need to re-write your point headings or re-organize your analysis.
F. Good point headings start with a good outline.
The simplest way to ensure that you’re creating good point headings and that you’ve created a well-reasoned argument is to spend time outlining your brief. You can then turn the points of your outline into point headings.
G. You should include point headings in your Table of Contents.
Once you’ve written your brief and included good point headings, be sure to include the point headings in your Table of Contents. Doing so allows you to start persuading your reader sooner because they can see the key facts of your case and the key points of your argument just by reading your Table of Contents. Compare these examples:
Good point headings make your writing clearer and allow your reader to follow the structure of your argument. Summaries do too.
2. Summaries make our writing better.
Summaries should provide a brief overview of what you will discuss. Summaries allow you to orient a reader who is unfamiliar with a topic or issue. They give the reader a base of knowledge from which to work and help them better understand the information that you provide. Think of your summary as your elevator pitch.
After you’ve created good point headings and helpful summaries, think about ways you can transition your reader smoothly from one topic to the next.
3. Transitions make your writing easier to follow.
A good transition should remind your reader what they just learned and prime them to receive additional information. Good transitions connect the parts of your writing to avoid sudden shifts between topics or arguments. They allow your reader to move smoothly from one subject to the next and show that there is a logical structure and flow to your writing.
Good point headings, summaries, and transitions work together to create a logical flow to your writing. The effort you put into crafting these parts of your brief will make your reader’s work easier and thus help you be a better advocate.
September 7, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (1)
Saturday, August 7, 2021
In law school or in law practice, many students will hear this statement: “if the law isn’t on your side, argue the facts; if the facts aren’t on your side, argue the law.”
Well, guess what?
Sometimes, neither the law nor the facts support your argument.
In your career, you will find yourself in the unenviable position of having to make a ‘bad’ argument before a court. To be sure, a ‘bad’ argument is not a frivolous argument. Rather, a ‘bad’ argument is one where the relevant precedent doesn’t support your position. It is one where the facts and equities are unfavorable to your client. In short, a ‘bad’ argument is one where your chances of winning are about as good as O.J. Simpson admitting that he killed Nicole Brown and Ronald Goldman.
So, what should you do to make a ‘bad’ argument better? Consider the following hypothetical:
You are representing a congressman – and former professor at a prestigious college – who is suing a newspaper for allegedly defamatory statements that the newspaper made during the congressman’s unsuccessful reelection campaign, where he lost by less than 500 votes. Specifically, four days before the election, the newspaper published an article titled “Congressman receives a grade of ‘F’ from former students.” In that article, the newspaper quoted several negative reviews from the congressman’s former students that were anonymously posted on www.criticizemyprofessor.com. The reviews included statements that the congressman was a “stupid and awful professor,” a “narcissistic jerk who based grades on whether he liked you,” “an insensitive elitist who routinely made statements in class that offended students and created an uncomfortable learning environment,” and “a man who has caused lasting trauma to his students.” When publishing this article, the newspaper contacted the college to inquire about the congressman’s performance, but the college declined to comment. Additionally, the newspaper failed to include numerous reviews from another website – www.praisemyprofesssor.com – where many former students anonymously and unanimously posted excellent reviews of the congressman.
After the election, the newspaper acknowledged that it “could have done better” by including the statements from www.praisemyprofesssor.com but stated that “we had no reason to believe that the statements posted on www.criticizemyprofessor.com were false” and posted them “with full confidence in their truth.” Indeed, there is no evidence to suggest that the comments made on either website are false.
As the attorney representing the congressman, you obviously have an uphill battle.
Not surprisingly, the trial court recently granted a motion to dismiss in the newspaper’s favor. The court held that under New York Times v. Sullivan, the congressman could only succeed on his defamation claim if he proved that the statements were false and made with actual malice, namely, with knowledge of their [the statements’] falsity or with reckless disregard for the truth or falsity of the statements. Based on the newspaper’s statements, its attempt to contact the congressman’s former employer regarding his performance, and the lack of evidence that the statements were false, the court held that this standard was not met.
The congressman decided to appeal and now you are preparing for oral argument. Given the facts, the actual malice standard, and the lack of evidence of falsity, you have a very ‘bad’ argument.
So, what can you do to make this ‘bad’ argument as persuasive as possible?
1. Create a nuanced argument that renders governing precedent less controlling
When you are presenting a bad argument, the worst approach is to be reactive. Don’t spend your time trying to explain away or distinguish controlling precedent, or trying to depict facts and evidence in an unjustifiably favorable light. Instead, admit that the law does not support your position. Acknowledge the unfavorable facts. After all, when you have to make a ‘bad’ argument, your credibility is the first and essential step to making a ‘bad’ argument persuasive. You don’t want the court to think that you are asking it to ignore precedent or accept implausible justifications to distinguish that precedent. You don’t want the court to think that you are minimizing or ignoring unfavorable facts.
Instead, develop a nuanced and original argument that renders precedent a little less controlling and the unfavorable facts a little less damaging. In so doing, you will enhance the likelihood of convincing the court that the rule or outcome for which you advocate is novel and neither inconsistent with nor contrary to existing law.
Consider the above example. With respect to the actual malice standard, how would you address the argument that the newspaper’s conduct doesn’t even remotely satisfy this standard?
Well, you could argue that the court should clarify its interpretation of “reckless disregard” for the truth or falsity of a statement. In so doing, you could argue that providing an incomplete, inaccurate, and thus distorted view of the facts to the public is a “reckless disregard” for the truth because it portrays an individual in a false and potentially defamatory light. By way of analogy, what the newspaper did is tantamount to a newspaper publishing an article stating that the congressman had previously been convicted of sexual assault while omitting that the conviction was overturned on appeal for lack of sufficient evidence. Furthermore, recklessness can be inferred because the newspaper could have easily discovered and published the statements on www.praisemyprofesssor.com; the newspaper’s choice not to portrayed the congressman in a false and defamatory light.
This is not to say, of course, that the above argument is persuasive and will lead to a successful result. It is to say, however, that it will likely make a ‘bad’ argument better and more palatable to the court.
Put simply, think outside of the box. Take a chance. Be creative. And in so doing, convince the court that the rule or outcome you seek is not a radical departure from existing law.
2. Ask questions that put your opponent on the defensive and expose weaknesses in your opponent’s argument
When you have to make a ‘bad’ argument, you should take an offensive, not defensive approach. Specifically, you should confront directly the weaknesses in your opponent’s argument. One way to do so is by posing simple questions that show how your opponent’s argument would lead to an unjust and unfair result, and constitute bad law and bad policy.
Below are a few examples relating to the above hypothetical:
So, it’s ok for a newspaper to selectively and with impunity publish facts about a public official that portray that official in a false and defamatory light?
So, it’s permissible for a public official’s reputation to be irreparably damaged because a newspaper concocted a false and misleading narrative by omitting student reviews that undermined that narrative – and suppressed the truth?
So, the court’s interpretation of ‘reckless’ means that it is perfectly fine for a newspaper to cherry-pick its sources to propagate a fake narrative that irreparably damages a public official and influences an election?
These questions aren’t perfect, but you get the point. By asking direct questions, you put your opponent on the defensive. You enable the court to view the issue in a different light. And you allow the court to answer the questions in a way that will lead to a favorable outcome.
3. Forget the straw man – attack and undermine your opponent’s best argument
Never, never, never avoid the elephant in the room. And never make a straw man argument.
Instead, attack your opponent’s best argument. Explain how the rule your opponent supports will lead to unfair and unjust consequences in this and future cases. For example, regarding the hypothetical above, explain why your opponent’s argument makes it nearly impossible for public officials to ever obtain remedies for defamatory statements, and why it makes it nearly always possible for newspapers to publish misleading information with impunity.
4. Use quantitative and qualitative data to maximize the persuasive value of your argument
Quantitative and qualitative data enhances the persuasive of any legal argument and can sometimes transform a ‘bad’ argument into a relatively persuasive argument. For example, regarding the above hypothetical, consider the following use of empirical data relating to the actual malice standard:
In the last ten years, relevant empirical data shows that the country’s ten most widely circulated newspapers published over 1,000 articles that contained false and misleading information about public officials. Despite over 100 lawsuits by public officials seeking damages for defamation, only one lawsuit led to a finding in the public official’s favor. This data reveals a disturbing fact: newspapers can publish false and misleading information with impunity because the actual malice standard – particularly the stringent interpretation of “reckless disregard” – serves as an impenetrable shield to any accountability whatsoever.
Although this argument obviously isn’t perfect, it does give the court something to think about, namely, that the actual malice standard over-protects newspapers and under-protects individuals who are damaged by the dissemination of incomplete and misleading information.
5. If the court isn’t likely to agree with anything you say, make sure that you get the court to agree with something you say
When presenting a ‘bad’ argument in a brief or at an oral argument, you will in many instances know with relative confidence whether the court is likely to respond with skepticism and even hostility to your position.
Consider the hypothetical above. An appellate court will almost certainly hold that the newspaper’s conduct does not even remotely support a defamation claim because there is no evidence that the statements were false or, even if they were false, that the newspaper’s conduct satisfies the actual malice standard. Indeed, you may have a nightmare on the eve of oral argument in which a judge on the appellate panel says something like this:
So, um, counselor, how can you honestly and with a straight face argue that the newspaper’s statements, which you don’t contend are false, can miraculously show a ‘reckless disregard for truth’ and satisfy the actual malice standard? What is wrong with you? How could you possibly present such a ridiculous argument to this court?
Uh oh. I wouldn’t want to be that attorney.
So, what should you do?
Well, you can decide to not show up for court, immediately quit the legal profession, and become a comedian. Or you can respond by getting the judge to agree with you on at least one proposition. For example, you could respond as follows:
I’m glad that you asked that question. To begin with, I think we can all agree that disseminating false, incomplete, and misleading information about any individual to the public can cause substantial and irreversible reputation harm. And we can probably also agree that a healthy democracy demands that newspapers have the right – indeed the obligation – to publish statements that criticize and reveal unfavorable facts about public figures. But I respectfully disagree with your contention that the statements aren’t false. When read in isolation, that may be true, but when read in context, the statements are decidedly untrue. Put simply, disseminating incomplete and thus misleading statements about an individual unquestionably portrays that individual in a false and defamatory light, thus making the message conveyed by the statements – that the congressman was a terrible professor – demonstrably false. Consider, for example, what a reasonable person would have thought of the congressman if the newspaper had published the statements on both www.criticizemyprofessor.com and www.praisemyprofesssor.com. The answer should be obvious: a reasonable person would view the congressman in a more favorable – and truthful – light. And that is the problem. Consequently, the dissemination of incomplete and misleading information is itself false and defamatory.
Now, this answer is undoubtedly not perfect and the flaws are obvious. It may not sway the judge and it almost certainly will not convince the court that the newspaper’s statements support a defamation claim. But remember that you are stuck with a ‘bad’ argument and trying to make it good enough to convince the court to reconsider the merits of your position. This response does raise an interesting point that may cause the court to pause for a moment and rethink its opinion concerning whether the statements could be construed as defamatory.
6. Argue with emotion and confidence
Perception matters. Confidence and passion matter. Especially when you are the underdog.
When presenting an oral argument, for example, you should use verbal and non-verbal techniques to show that you believe passionately and confidently in your argument, and in the outcome you seek. It doesn’t matter that you are presenting a ‘bad’ argument. What matters is that you advocate intelligently and forcefully as if your argument is and should be considered meritorious. When you exhibit confidence and passion (and make a well-structured argument), you enhance the likelihood that the court will think twice and question its preconceived notions or assumptions about your argument’s validity.
7. Appeal to the court’s sense of fairness and justice
Judges want to do the right thing. And judges will often engage in legal gymnastics to arrive at the outcome that they believe is just. If you doubt that, read Griswold v. Connecticut and Roe v. Wade, where the United States Supreme Court interpreted the Fourteenth Amendment’s Due Process Clause in a constitutionally indefensible manner to reach results that arguably reflected the majority’s policy predilections.
Regardless, because constitutional provisions, legal rules, and statutes are often broadly phrased, and precedent is often distinguishable, a court can in, many instances, reach a variety of justifiable outcomes. You can bet that the outcome a court reaches will reflect the court’s belief about what constitutes the fairest and most just result. After all, judges are not robots. They don’t just mechanically apply the law. They want to do the right thing -- or simply reach outcomes that reflect their policy preferences.
Ultimately, these strategies may not always be successful, but they will make your ‘bad’ argument better and increase the likelihood of succeeding on the merits.
Saturday, July 17, 2021
In a recent meeting about teaching Legal Writing, an experienced appellate advocate mentioned practicing “power poses” as part of her prep for an oral argument at the Ninth Circuit. While her comment was a nice way to add humor and humanity to the conversation, the idea of using power poses to add confidence before oral argument stuck with me long after the meeting concluded.
I decided to check out the TED Talk on power poses the advocate mentioned in our meeting: Social Psychologist and Harvard Business Law Professor Amy Cuddy’s TEDGlobal 2012 Your Body Language May Shape Who You Are. https://www.ted.com/talks/amy_cuddy_your_body_language_may_shape_who_you_are. The TED Talk website has a disclaimer at the beginning of Prof. Cuddy’s talk, explaining, “Some of the findings presented in this talk have been referenced in an ongoing debate among social scientists about robustness and reproducibility.” Id. Keeping in mind the debate about the science behind some of Prof. Cuddy’s premises, I decided to focus more on her overall points about body language.
Prof. Cuddy’s general theme is that "power posing" by standing or sitting in a posture of confidence--even when we do not feel confident--can boost subjective feelings of confidence and thereby possibly impact success. Id. She initially focused on non-verbal communications, especially posture, among her MBA students. Cuddy noticed her students who made themselves smaller, with hunched shoulders and crossed arms and legs, tended to earn lower grades than the students whose posture took more space. Looking at controlled human subject students and primates with her collaborator, Prof. Dana Carney of Berkeley, Cuddy also saw a connection between testosterone and cortisone levels and use of power poses like the “Wonder Woman” and “Victory” stances with arms outstretched. Thus, Prof. Cuddy hypothesized people who sit hunched over before a job interview, or in our case an oral argument, will have less confidence than those who stand for a few minutes privately in a power pose before an important talk. See id. Prof. Cuddy stressed she does not believe the power poses are for use “with other people” or to have any impact on substance, but instead can help us feel more comfortable with ourselves and thus preform better. Id.
Commentator Kate Torgovnick May summarized Prof. Cuddy’s point as: “[B]efore heading into a job interview, giving a big speech or attempting an athletic feat . . . everyone should spend two minutes power posing [by] adopting the stances associated with confidence, power and achievement — chest lifted, head held high, arms either up or propped on the hips.” Kate Torgovnick May, Some Examples of How Power Posing Can Actually Boost your Confidence (Oct. 1, 2012) https://blog.ted.com/10-examples-of-how-power-posing-can-work-to-boost-your-confidence/. Torgovnick May provides several testimonials from people who successfully used “Wonder Woman” or other power poses before important classes, interviews, and presentations. See, e.g., id. (“It’s nice to see that there’s scientific support for Oscar Hammerstein’s King and I lyrics: ‘Whenever I feel afraid, I hold my head erect and whistle a happy tune, so no one will suspect I’m afraid …The result of this deception is very strange to tell, for when I fool the people I fear, I fool myself as well.’”)
In bringing these ideas back to my own life, and to our Appellate Advocacy blog, the mom in me could not help but remember my own lawyer mother teaching my sister and me to walk with books on our heads. My mom--like so many other parents—wanted her girls to stand up straight and have confidence. I regularly chide my very tall sons for hunching over, admonishing them to “put back” their shoulders and “stand up straight.” While the scientific community debates the precise reliability of Prof. Cuddy’s work, I know standing with confidence can indeed help me feel and look more confident in court and in the classroom.
Therefore, I recommend you check out Prof. Cuddy’s TED Talk, as well as the debate on her research. And the next time you are especially nervous about an oral argument or presentation, spend two minutes in a power pose. Hopefully, you can smile thinking about the parent, auntie, teacher, or other adult who told you to “stand up straight” years ago. And perhaps this technique will give you increased confidence too.
Friday, July 2, 2021
Persuading other people to adopt your point of view, whether in a courtroom, a faculty meeting, a debate, or any other context, depends on how you deliver your argument. Below are tips to maximize the persuasive value of an argument.
1. Persuasion is about perception
In many instances, people do not decide whether to accept a particular argument based on facts or science. Rather, their decision is based on their perception of you. And that perception will be influenced substantially by how you deliver your argument. The most important aspect of that delivery is confidence. If you appear confident, the audience will be more likely to agree with you, regardless of contrary facts or evidence.
Simply put, confidence is everything.
Confident advocates take a stand and are bold.
They are unequivocal.
They never get flustered.
They never act surprised.
They never say “um,” or, “I think,” or, “I’m not entirely sure.”
When they receive hostile questions, they react by stating, “I’m really glad that you asked that question.”
In short, if you win the battle of perception, you also likely win the war of persuasion.
2. Make your audience initially agree with you by connecting your argument to commonly accepted values
To win an argument at the end, you have to win at the beginning. And winning at the beginning means connecting your argument to broader values upon which nearly all people can agree. If people agree with the broader values underlying your argument, they will be more likely to accept the specific aspects of that argument. Consider the following examples of two hypothetical lawyers arguing that the First Amendment protects “hate speech”:
The First Amendment protects hate speech because the Founders believed that the right to free speech was essential to liberty and democracy. As a result, offensive, distasteful, and unpopular ideas must be tolerated to ensure that a true marketplace of ideas exists and that people are not threatened by government censorship. Therefore, hate speech, however one might define such speech, must be tolerated.
Ok, whatever. Now consider this example:
Speech that degrades, denigrates, and demeans other people can be terribly hurtful. I’m sure that we can all recall a moment in our lives when another person said something demeaning to us and remember the pain that it caused. And I’m sure we wish that all people realized the harm that words can cause and respected the dignity of every human being. At the same time, most people don’t want the government to become the speech police. They don’t want the government to arbitrarily decide what speech is considered “hate speech,” and what speech is not, thus giving it the power to censor whatever ideas it deems unpopular. If the government had that power, liberty, autonomy, and democracy would be threatened. For these reasons, as much as we may despise those who degrade, denigrate, and demean others, the answer is to fight back by using our free speech rights, not to give the government carte blanche to dictate what we can and cannot say.
The second example appeals to values that most reasonable people accept and view as essential to a free society. And when they agree with these broader values, they are likely to accept the argument that hate speech must receive First Amendment protection.
Simply put, if they agree with you at the beginning, they are more likely to agree with you at the end.
3. It’s ok to be a little unprofessional in the right circumstances
Advocates who are authentic, likable, relatable, and passionate are more likely to sway an audience. And in some instances, authenticity means ‘being real’ and dispensing with formalities when making an argument. In short, sometimes it’s ok to be a little unprofessional. Why? Because it conveys your passion. It shows that you believe in your argument.
Consider the following examples involving two hypothetical appellate advocates who are arguing to the New Jersey Supreme Court the issue of whether defense counsel's performance at trial violated the Sixth Amendment:
In Strickland v. Washington, the United States Supreme Court held that a Sixth Amendment violation occurs where counsel’s performance is negligent and where such negligence results in prejudice, meaning that, but for counsel’s negligence, the outcome of the trial would have been different. This case is a perfect example of ineffective assistance of counsel. Counsel slept during parts of the trial. Counsel admitted to having a cocaine addiction and to being an alcoholic. Yet, the appellate court held that this conduct was harmless error because my client confessed to the crime. Now my client will be incarcerated for twenty-five years for voluntary manslaughter. This decision was erroneous and should be reversed.
Yeah, right. Based on that argument, the appellate court’s decision isn’t going to be reversed. Now consider this example:
My client was represented by counsel who, during the trial, was addicted to and snorting cocaine. He was represented by counsel who smelled of alcohol. And due to the hangovers caused by his frequent cocaine and alcohol binges, counsel fell asleep during the trial, including during the prosecution’s examination of critical witnesses. It should come as no surprise that anyone represented by a drug-addicted, alcoholic, and sleeping lawyer would be convicted. But it should come as a shock that such a conviction would be upheld on appeal. The appellate court didn’t give a shit about this blatant denial of due process. The appellate court didn’t give a shit about the drugs, the booze, and the frequent naps during the trial. To the court, this was harmless error. If that is harmless, it’s difficult to know what would be harmful.
The second example is real. It is raw. It is authentic.
Of course, being a little unprofessional doesn’t give you a license to be a jerk. Never be disrespectful or attack personally your adversary or the lower court. And keep the four-letter words to a minimum. But there are instances in which your passion and authenticity can be best expressed by dispensing with the formalities and being real.
4. Reframe your opponent’s argument
Don’t allow your opponents to frame issues on their terms. Reframe the issues to support your argument and reinforce the commonly accepted values on which they are based. For example, consider the above example regarding ineffective assistance of counsel and how the hypothetical attorney in Example 2 reframes the argument to appeal to basic and commonly accepted values.
The state acknowledges that defense counsel had a drug and alcohol problem and that defense counsel slept during portions of the trial. But that is not the relevant inquiry. The question is whether defense counsel’s performance prejudiced the defendant, such that the outcome of the trial would have been different had counsel performed differently. The answer to that question is no. The conviction should be affirmed.
The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel snorted cocaine during the trial. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel is an alcoholic. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel falls asleep during a trial and renders the defendant helpless in the legal process. The state is asking this court to hold that attorneys who are addicted to cocaine and alcohol, and who decide to sleep rather than aggressively advocate for their clients, satisfies the Sixth Amendment’s promise of effective assistance of counsel. To accept the state’s argument is to say that the Sixth Amendment has no meaning whatsoever.
Yikes. I wouldn’t want to be a justice on the New Jersey Supreme Court in such a case.
5. Explain with specificity why your position is good policy and will lead to fair and just results
It’s not sufficient that your proposed rule or policy is workable based on the facts of a specific case. The most persuasive arguments demonstrate that such a rule or policy would be workable, fair, and just in future cases and in a variety of contexts.
To achieve this objective, you should do three things. First, make sure that your position is supported by facts and empirical data. Second, acknowledge weaknesses in your position and explain how your rule or proposal addresses such weaknesses and leads to just results. Third, to demonstrate its efficacy and fairness, give hypothetical examples explaining how your rule or proposal would be applied in other contexts.
After all, facts don’t always win arguments.
The law doesn’t always win arguments.
Be confident. Be authentic.
Saturday, June 26, 2021
Often, students and practitioners ask for me book recommendations on appellate advocacy. Like many, I am a fan of Bryan Garner’s works and of anything by Judge Ruggero J. Aldisert. Recently, Professors Daniel P. Selmi and Rebecca A. Delfino, colleagues of mine when I was teaching at Loyola Law School Los Angeles, published the Second Edition of Principles of Appellate Advocacy with Wolters Kluwer (Aspen). The book is aimed at law students, but its straightforward organization and direct examples will help students and newer practitioners alike. I will definitely be recommending Principles of Appellate Advocacy in the future.
Delfino explained she found the first edition of the book when she needed a legal writing and appellate advocacy text that would not “overwhelm students with a disparate mixture of rules, arcane procedural requirements, and multiple writing instructions.” She also: “didn’t want to use a dense case book, a workbook of exercises, or seminar materials full of platitudes or hacks geared to practitioners. Instead, I wanted something practical, concise, and accessible written by someone who knows the law student audience.” Delfino found Selmi’s first edition easily manageable for students, with instructions “laser-focused on appellate brief-writing.”
In the second edition, Selmi and Delfino, now a co-author, have retained the comfortable length and approachability of the book. The second edition is only 166 pages before the samples and problems. While full of excellent concrete examples, the text flows easily and invites students to stay engaged with clear and direct writing. Just like a good brief, the book has a very helpful Table of Contents and keeps the focus on explaining why each proposed writing technique matters.
Delfino explained the main changes to the second edition came from student and colleague feedback. Selmi and Delfino added more information on standards of review, appealable error, and preservation of issues for appeal. They also included new exercises to stress the “rules for writing discussed in the text and [provide] practice revision and editing techniques.” Finally, they added a helpful video on oral argument and a sample syllabus.
I especially liked Chapter 10, “Basic Writing and Other Mechanics.” As the authors aptly explain, good writing “is not a matter of ‘style’” but of following key principles. Principles of Appellate Advocacy provides ten areas of focus for the best legal writing, such as manageable sentence and paragraph length and effective topic sentences. The book also has great examples, some in understandable diagram form, of the dreaded passive voice and nominalizations my students use sometimes.
As the authors note in the Introduction, “Appellate brief writing is a time-intensive exercise” and a “course in appellate advocacy undoubtedly will take more of students’ time than they estimate.” But the new edition of Principles of Appellate Advocacy will help students and newer practitioners get to winning briefs more quickly and easily.
Sunday, June 13, 2021
Moot Court is an important class in law school because it teaches students the skills necessary to be effective appellate advocates. Below are five rules that moot court students – and practicing appellate advocates – should follow when arguing before an appellate court.
1. Start strong
First, begin with a powerful opening sentence that captures the court’s attention. Of course, don’t be too general or overly dramatic. Instead, ask yourself how you would describe in one sentence why you should win. The answer should be your opening sentence.
Second, use the Rule of Three. After your opening sentence, immediately and concisely provide the court with three reasons supporting the outcome you seek. Be sure that they are clearly delineated and supported by the record and relevant law.
Third, tell the court what remedy that you are seeking and the rule you would like the court to adopt. The court needs to know what you want and why giving you what you want would result in a workable rule that can be applied fairly and consistently to future cases. Put simply, the beginning of your argument is a roadmap for the court to follow that will lead to a ruling in your favor.
Consider the following examples by attorneys who are appealing a district court’s decision to dismiss via summary judgment their client’s defamation case on the ground that the alleged defamatory statements were constitutionally protected opinion:
May it please the court. The First Amendment is sacrosanct in our society. Ensuring a robust marketplace of ideas is essential to a democratic society. To that end, unpopular ideas are protected from government censure and even the most distasteful comments warrant First Amendment protection. But sometimes, people cross the line and say things that neither the First Amendment nor common decency should countenance. The founders did not intend for any speech, no matter how harmful, to receive First Amendment protection, as the United States Supreme Court has recognized in cases like Miller v. California and Brandenburg v. Ohio. This is one of those cases. The harm caused to my client by the statements made against him is actionable under federal law.
What nonsense. If I was the client and listened to this opening, I would cringe and possibly run out of the courtroom. Now consider this example:
May it please the court. The appellee’s statement implied underlying false facts, was defamatory as a matter of law, and caused severe reputational harm. First, the statement that my client was “a disgusting person and attorney who would lie to any client to make money,” implied that my client was an incompetent and unethical lawyer. Under United States Supreme Court jurisprudence, these statements are actionable and defamatory. Second, the statement is verifiably false. As demonstrated in the over fifty reviews by former clients, my client's inclusion in the Best Lawyers in America for the past ten years, and his selection as the Lawyer of the Year last year, the statement is untrue. Third, the statement has subjected my client to harm and ridicule in the community. Several clients have fired him. Many have sent him offensive emails. He has been suspended from the State Ethics Committee on which he served. For these reasons, we respectfully request that this court overturn the district court’s grant of summary judgment by applying the well-settled principle that opinions implying underlying facts can – and often are – defamatory.
The difference should be obvious.
2. Answer the judges’ questions.
Perhaps the most important part of an oral argument at the appellate level is the judges’ questions. Those questions provide insight into, for example, concerns the judges may have about one or more of your arguments or the rule that you would like them to adopt. They are also an opportunity – indeed the best opportunity – to make your case to the judges.
To do so, you should follow two basic rules. First, answer the questions directly. Do not try to avoid them or give answers that may sound persuasive but that aren't responsive. You are a lawyer, not a politician. If you give evasive answers, you will lose credibility with the judges. You will show that you lack effective responses to the judges' concerns. And that will undermine the strength of your argument. Thus, be sure to answer the questions directly. Those answers may require you to acknowledge weaknesses in your case, such as unfavorable facts or law. Who cares. The best attorneys concede these points and explain why they do not affect the outcome they seek.
Second, the best attorneys pivot seamlessly from the question back to their argument and thus continue the argument with excellent organization and flow. Consider the following examples:
Judge: Counselor, as bad as this statement may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: Well, the real issue here is about the harm. My client’s reputation has been severely and, perhaps, irreparably harmed by this statement. And the record amply supports that fact. So, the technical distinction between pure opinions and opinions implying underlying facts is really just an argument about semantics.
Judge: Let me try this one more time. What criteria would you use to distinguish pure opinions from opinions implying underlying facts?
Attorney: With all due respect your honor, that is not the question in this case. The question is whether my client was defamed. The answer is yes.
That is simply terrible. Now consider this example.
Judge: Counselor, as bad as these statements may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: The distinction is verifiability. Pure opinions cannot be proven to be factually false. For example, if a person says, “the New York Yankees are a bad team,” that would be a pure opinion because what one considers ‘bad’ is subjective. But if a person said, “The New York Yankees are only a good team because of the stuff their players take to enhance their performance,” that would be an opinion that implies underlying facts because it can be proven that the players do not take performance-enhancing substances. In this case, the appellee did not simply say that my client was a ‘disgusting person.’ He said that he was a ‘disgusting person and attorney who would lie to any client to make money.' We can verify, through affidavits and sworn testimony, that he never lied to a single client about any matter pertaining directly or indirectly to their representation. And that is why the rule we ask this court to adopt is neither novel nor unworkable. We simply ask that you apply well-settled precedent stating that opinions implying underlying false facts can be defamatory. Indeed, in this case, they most certainly were defamatory.
Again, the difference should be obvious.
3. Have a conversation with the court
During an oral argument, you should be yourself and have a conversation, not a confrontation, with the court. The judges are not your enemies. They are simply trying to reach the fairest outcome that is consistent with the law and justified by the facts. Thus, you should be friendly and respectful, realizing that, as an advocate and as an officer of the court, your responsibility is to help the judges reach the best result while remaining faithful to your client’s objectives.
The best way to do this is to provide the court with a practical and workable legal rule that can be applied fairly and consistently to future cases. Remember that appellate judges are not focused exclusively or even primarily on your client. They are focused on whether the outcome they reach and the rule they adopt will provide workable and just in future cases, both as a matter of law and policy. For this reason, the best appellate lawyers advocate fiercely on their clients' behalf but also propose legal rules that the court believes will provide clarity, fairness, consistency, and predictability in future cases.
4. Don’t screw up on the basic aspects of appellate practice
Never make the basic mistakes, namely, the ‘red flag’ errors that undermine your credibility and your case. For example:
- Know the record
- Know the law (and please make sure your legal authority remains valid law)
- Know the standard of review
- Write an outstanding – and concise – appellate brief and remember that the brief is more important than the oral argument
- Never be disrespectful to the lower or appellate court, or the adversary
- Follow the federal or state rules, and the local rules
- Don’t make weak arguments
- Cite cases and other authority
- Know the difference between binding and persuasive authority
- Have realistic expectations and communicate those expectations to your client
- Don’t use notes at oral argument
- Be honest
- Don’t be a jerk
This list is certainly not exhaustive. But if you violate one of these rules, your chances of winning will be compromised – as will your reputation.
5. Have a short list of ‘non-negotiable’ legal arguments
It’s difficult to predict what will happen in an oral argument. Some appellate panels ask many questions, which is known as a ‘hot’ bench. Some ask few questions. Sometimes, the judges raise issues that you don't expect or ask questions that you have difficulty answering. Regardless of what happens at an oral argument, you should always have a list in your mind of the arguments that are so essential that you must communicate them to the court, no matter what the direction or focus of the argument.
And remember, there are some things that cannot be taught or that require significant practice. Those are a lawyer's: (1) charisma; (2) personality; and (3) persuasiveness. The best appellate advocates have all three.
Saturday, June 5, 2021
Winning an argument depends in substantial part on effectively using strategies to maximize your argument’s persuasive and logical force, expose weaknesses in your adversary’s argument, and convince the audience to adopt your position. Below are tips that will enhance your chances of winning an argument in many contexts, such as in court, at a debate, or in a negotiation.
1. Require that your adversary define relevant terms with specificity.
You should always require your adversary to define important terms that are essential to proving or disproving an argument. And you should never engage in or respond to arguments that consist of overly general propositions. For example, imagine the following discussion between two scholars who differ about the extent to which systemic racism and white privilege exists in the United States:
Scholar: Both history and current laws demonstrate that the United States is systemically racist, and that white privilege is pervasive throughout this country. Ultimately, until our society is more diverse and inclusive, we will continue to oppress marginalized populations.
Wow. There is a lot to unpack in that statement.
Importantly, the scholar’s adversary should neither react nor respond to the substance of that statement. Instead, the scholar’s adversary should state as follows:
I certainly agree that racism, inequality, and oppression are antithetical to basic human values. But how do you define and quantify systemic, or institutional, racism? Which specific institutions do you allege are racist? And how do you define and quantify white privilege?
This strategy forces your opponent to be specific and places on your opponent the burden to provide a definition upon which most reasonable people can agree. In so doing, the opponent will likely reveal underlying assumptions or biases in an argument and thus allow you to expose the flaws in whatever definition the adversary provides. At the very least, you will prevent your opponent from relying on unproven generalities and enable yourself to avoid a futile discourse involving statements that may lack an empirical foundation.
2. Expose logical fallacies in your opponent’s argument, especially appeals to authority and emotion.
Logical fallacies undermine many arguments. Two of the most common are the appeals to authority and emotion.
First, many advocates strive to enhance the validity and persuasiveness of an argument by relying upon well-respected sources or unnamed “experts.” Consider the following example:
Any athlete should have the right to kneel for the national anthem and thus exercise their right to free speech. As nearly every justice on the United States Supreme Court has stated, freedom of speech is critical to protecting liberty and democratic values.
This statement represents an appeal to authority. Specifically, the fact that nearly every justice on the Supreme Court may have expressed these sentiments utterly fails to support the argument that any athlete should have the right to kneel for the national anthem. In essence, the person making this statement is saying, “If the justices on the Supreme Court agree with me, the argument must be valid.” Wrong. An argument is valid only if it is based on facts and evidence.
Second, many advocates appeal to the audience’s emotion when striving to maximize an argument’s persuasive value. Consider the following example:
We must resist attempts to abolish the death penalty. A few years ago, my teenage son was brutally murdered by a man who had previously murdered four teenagers. The only way justice will be served is if we hold this man accountable for the atrocities he committed.
This is a tremendously sad story. But it is not a logically valid argument. Whether the death penalty should be abolished depends on facts and data regarding, among other things, whether the death penalty is applied fairly and equitably, and whether it deters crime. The above statement addresses none of these points.
3. Begin your argument with a foundational and well-accepted principle.
To maximize the likelihood that the audience will adopt your position, begin your argument with foundational principles that engender widespread agreement. For example, assume that you are debating whether Georgia’s recently-enacted voter identification law will suppress voter turnout, particularly among minority communities. Consider the following two statements:
Georgia’s voter identification law does not and will not impact voter turnout. And the law isn’t targeted at minority communities. It applies to everyone and enhances election integrity.
Racism and discrimination are intolerable, and equality is a basic principle of democracy and essential to liberty. To that end, we must embrace the core principle that every person, regardless of, among other things, race, ethnicity, religion, and sexual orientation, has an equal right to vote and must have equal access to the ballot box. Georgia’s law does not violate this important principle.
Which statement is better? The answer should be obvious – as should the reasons why.
4. Know the statistics. Again, know the statistics.
To win an argument, you must know the relevant statistics and empirical studies that impact the argument’s validity. If you don’t, or if you rely only on statistics and studies that are favorable to you, your argument’s persuasive force vanishes along with your credibility. For example, some scholars have posited, in law review articles and other publications, that implicit bias is a major contributor to ongoing discrimination, marginalization, and oppression in society. In support of this argument, they cite studies allegedly illustrating implicit bias’s pernicious effects.
There is only one problem. Several recent studies have debunked or, at the very least, cast serious doubt upon the relationship between implicit bias and biased behavior. Sadly, very few advocates of implicit bias training have addressed this damaging evidence. This failure renders their arguments unpersuasive and calls into question their objectivity as scholars.
To avoid this mistake, be sure to prepare extensively before any argument by knowing the relevant facts and data, both favorable and unfavorable, that impact your argument. Don’t be afraid to concede bad facts. Instead, explain why they do not affect the outcome you seek and highlight how the statistics favor the position for which you advocate.
After all, facts and statistics are the foundations of powerful arguments.
5. Transition from abstract to concrete arguments.
When making an argument, avoid extensive reliance on abstract principles. Instead, provide concrete evidence and examples that support your argument, and offer a solution or rule that demonstrates your position's practicality and workability. Consider the following example:
The Fourth Amendment should not be construed to allow law enforcement officers to conduct warrantless cell phone searches. Privacy is a bedrock principle in the Constitution and citizens have a right to be free from unreasonable, government-sanctioned intrusions on privacy. Furthermore, law enforcement must not be given the power to encroach upon basic civil liberties and thus place the freedoms of all citizens at risk.
Yeah, whatever. That statement is far too abstract. Consider this example:
Warrantless cell phone searches incident to arrest violate the Fourth Amendment. Unlike searches of closed containers or passenger compartments, a cell phone houses a vast amount of the very papers and effects, such as personal photographs, bank statements and other documents, text and email addresses, and online search history, that the Founders would have afforded the highest Fourth Amendment protection. As such, warrantless searches in this context are unreasonable per se. The Court should thus adopt a rule stating that law enforcement officers must have probable cause and warrant before searching a cell phone incident to arrest.
This statement is far more persuasive because it makes specific points, and proposes a workable and practical rule.
6. Use ‘hidden’ premises in your argument.
Including ‘hidden’ premises in your argument helps to reframe the issue(s) effectively in your favor and increases the likelihood that the audience will agree with your stated premises and conclusion. Additionally, it often presents as accepted or proven precisely the issue(s) that the argument or debate involves. Consider the following example:
The death penalty should be abolished immediately for three reasons. First, the death penalty disproportionately impacts African-American defendants. Second, it is almost certain that innocent people have been executed. Third, the death penalty serves none of the purposes of criminal punishment. Thus, because I am against racial discrimination and inequality, because I do not believe in intentionally murdering innocent civilians, and because I do not support criminal justice policies that have no societal value, the death penalty should be abolished.
This statement is effective because of the ‘hidden’ premises, even though some scholars would disagree with one or more of these assertions. But that is not the point. The point is that all reasonable people are against racial discrimination and inequality. No one believes in “intentionally murdering innocent civilians.” And few would support any policy that has no societal value. By including in your argument widely accepted principles, you increase the likelihood that the audience will accept your argument and adopt your position.
7. Never allow your adversary to characterize you or your argument inaccurately.
Make your adversary work diligently to establish any point that impacts negatively your argument. Put simply, always challenge inferences or assumptions that your adversary makes to undermine your position. Consider the following example:
Professor Smith recently drafted an article claiming that the late Justice Antonin Scalia was an “intellectual giant on the Supreme Court and the author of many extraordinary opinions that respected the Constitution’s text and structure.” Professor Smith’s endorsement of conservative values and a conservative judicial philosophy means that he will support judges who turn a blind eye to progressive values and marginalized populations.
Be sure to call out such nonsense. What Professor Smith said does not even remotely support the proposition that he endorses conservative values and will support judges who “turn a blind eye” to progressive values (whatever that means). Never allow your adversary to get away with such a misrepresentation and never concede more than is necessary to maintain your argument’s credibility.
8. Listen more and talk less.
It’s the quality, not the quantity, that matters. In an argument, never talk too much and dominate the discussion. When you do so, it suggests that you are insecure about the merits of your argument, that you believe your adversary has made compelling points that require an immediate response (which gives your adversary credibility), and that you are so rigidly attached to your argument that alternative perspectives are neither necessary nor welcomed. Unfortunately, that approach undermines your credibility.
Remember, less is more. You should listen calmly and carefully to your adversary’s argument. You should recognize good points that your adversary makes and strive to find areas of agreement. And when you do speak, be sure to make a concise, high-quality, and compelling statement. What does that mean? Get to the point immediately. Start with a powerful theme. Use the Rule of Three. Lead with your strongest points. Use statistics to support your assertions. End powerfully and confidently.
Then, shut up.
The best advocates pick their battles effectively.
9. Never show emotion.
Getting emotional is one of the worst things that you can do in an argument. When you show emotion, such as by being angry, irritated, or offended, it typically means that your adversary is winning the argument and that you are not confident in your position. Consider the following two statements from the captain of an airline to passengers who just flew through severe turbulence in bad weather:
Hi everyone, please do not worry. I know that things were really rough for several minutes, but I will never allow this plane to crash! Let me repeat – I will not let this plane crash, no matter what! I am a veteran of the Air Force and I’m going to fight this weather to the death!
If I were a passenger on this plane, I would immediately believe that the plane was going to crash nose-first into a ditch. Now consider this statement:
Hi folks, sorry about the rough air we just encountered. The plane is fine, of course, and the turbulence we just encountered is pretty common in this part of the country. We’re going to change our altitude as soon as possible to make your flight as comfortable as possible and we don’t expect much rough air for the rest of the flight.
If I were a passenger on this plane, I would feel assured and safe. The difference wasn’t simply the words. It was the measured manner with which the latter statement was delivered.
Simply put, in an argument, be confident. Be calm. Never act surprised by a point your adversary makes or a question that your adversary asks. This doesn’t mean that you shouldn’t show passion and conviction. You should certainly be your authentic self. But you must avoid the negative reactions and emotional outbursts that invariably raise questions about your credibility and the merits of your argument.
10. Don’t be an a******.
People like others who are nice. They like others who are respectful, friendly, and civil. They like others who are mature. They like others who are honest and genuine. And when people like you, they will be more likely to listen to you and find you credible. Most importantly, when people like you, they are more inclined to adopt your position. After all, people associate with those that they like and respect.
Conversely, people hate jerks. And they know them when they see them. Jerks attack people rather than ideas. Jerks insult others. Jerks always think that they are right and that else is always wrong. Jerks interrupt people when they are speaking. Jerks misrepresent others’ positions. The list goes on and on.
You get the point. Don’t be an a******.
Remember, when you make an argument, people are not just listening to what you say. They are evaluating you.
Saturday, February 13, 2021
Opening statements are among the most critical aspects of a trial. Indeed, the opening statement provides attorneys with the opportunity to, among other things, make an excellent first impression with the jury, highlight the most favorable facts supporting an attorney's argument, and establish trust and credibility with the jury. Below are tips to maximize the persuasive value of an opening statement.
Begin with a theme. First impressions are critically important, whether it is at a trial, in an interview, or during an audition. For that reason, it is vital to start strong when delivering your opening statement. A powerful beginning, among other things, gets the jury’s attention and establishes your credibility immediately. To ensure that you deliver a persuasive and powerful opening, begin with a theme. A theme is a concise, one-sentence statement that explains what the case is about and, more importantly, why the jury should rule in your favor.
Tell a story. It is critical to tell a compelling and enjoyable story that has a beginning, a middle, and an end. The story should include vivid details and powerful language concerning, among other things, the characters in your story (e.g., the plaintiff and defendant), and the atmosphere within which the events in question occurred. A compelling story helps to personalize your client, enables the jury to visualize (and thus relate to) the relevant events, and enhances your statement’s emotional impact.
Use the Rule of Three. The best opening statements are well-organized and cohesive. One of the best ways to ensure that your opening statement is structured effectively is to use the Rule of Three. Simply put, the Rule of Three provides the jury with three distinct reasons that support a verdict in your favor – and maximizes the persuasive value of your statement. As one commentator explains:
We humans tend to think in triplets. Three is a good number to wrap our mind around, and we see it in all kinds of instances. We tend to remember points best when given in groups of three, we scan visual elements best when they come in threes, and we like to have three options to consider. Think how often three comes up in our society: three little pigs, three strikes, three doors on ‘Let’s Make a Deal,’ three competitive quotes. It’s a triordered world out there.
In essence, the Rule of Three “creates simplicity, aids recall and makes your job easier.”
Use demonstrative exhibits. During opening statements, demonstrative exhibits can often be a powerful tool to convey important facts and evidence to the jury in a well-structured, clear, and concise manner. Indeed, such exhibits focus the jury’s attention on the strongest facts and evidence supporting your argument, and can make your opening statement more persuasive and engaging, particularly for jurors that prefer visual images to enhance their understanding of the case.
Keep it simple and understandable. Opening statements should always be delivered using simple and easy-to-understand language. Thus, avoid fancy or esoteric words. Eliminate unnecessary legalese. And be sure to explain complex concepts in a clear and straightforward manner. Otherwise, you will likely lose the jury’s attention and fail to communicate your argument persuasively.
Be likeable, relatable, and credible. Likeability is an integral part of persuasive advocacy. Jurors (and judges) will be more inclined to rule in your favor or give you the benefit of the doubt if they like you. To enhance likeability, do not read your opening statement to the jury. Do not use notes. Instead, speak to the jurors in a conversational tone. Make eye contact and engage the jurors. Smile. Be friendly. Do not talk down to the jurors, attack your adversary, or speak in an overtly hostile manner. If the jurors like you, you will gain trust and credibility, both of which are essential to maximizing the persuasive value of your arguments.
Use non-verbal techniques. Non-verbal techniques are an essential part of effective advocacy. Such tecnhniques include, but are not limited to, avoiding speaking in a monotone and overly formalistic way. Instead, vary your tone and pace to emphasize important facts. Show authentic emotion. Use hand gestures and different facial expressions. Do not stand in one place for the entirety of your opening statement. And do not act in any manner that can be perceived as contrived and disingenuous. Effective non-verbal techniques contribute immeasurably to showing the jury that you are a genuine and relatable person -- and increase your openig statement's persuasive impact.
Confront unfavorable facts. Do not avoid facts that are unfavorable to your case. Instead, confront those facts in your opening statement and explain why such facts do not and should not affect the outcome or remedy you seek. If you fail to confront unfavorable facts, you can be certain that your adversary will, and when that happens, your credibility will be undermined substantially.
Avoid including unnecessary or irrelevant facts and explanations. Your opening statement should capture the jury’s attention from the first sentence and keep the jury’s attention until you conclude. To accomplish this, and to maximize persuasive impact, the opening statement must be interesting, engaging, and, at times, captivating. As such, avoid including unnecessary or irrelevant facts and explanations. Make sure that your statement is not too lengthy, unduly repetitive, ineffectively organized, or plain boring. Otherwise, you risk losing the jury’s attention – and your case.
End strong. The end of your opening statement is equally as important as the beginning. Your goal should be to reinforce the theme, maximize emotional impact, and highlight in a memorable way the strongest facts and evidence supporting your argument. Ask yourself, “what is the last and most important thing that I want the jurors to hear before they deliberate?” After all, a poor and unpersuasive ending can affect negatively the manner in which the jurors assess your arguments and, ultimately, diminish significantly your likelihood of success.
 Paul Luvera, “The Importance of a Trial Theme and the Rule of Three” (Jan. 16, 2011), available at: The immportance [sic] of a trial theme&the rule of three – Plaintiff Trial Lawyer Tips (internal citation omitted).
Saturday, December 26, 2020
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.
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.
 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)
Sunday, December 13, 2020
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.
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)
Wednesday, July 29, 2020
This has, out of necessity, been a busy summer for the law school advocacy community. Some exciting and important developments this week:
Guidance for Conducting Moot Court Competitions in 2020–21: Throughout this summer, a group of advocacy professors and coaches coordinated by Rob Galloway, the Associate Director of Appellate Advocacy at South Texas College of Law Houston, has met weekly to discuss issues related to running moot court competitions and programs in the COVID era. This week, the group published a comprehensive set of recommendations for administering moot court competitions in 2020–21. The document is signed by 78 advocacy teachers, many of whom also administer interscholastic and intramural competitions. It offers insights complied by three working groups on handling competitions in These Challenging Times. Like the best-practices guidance for courts published recently by the American Association of Appellate Lawyers, the document stresses that competition organizers should strive to bring as much normal as possible into the new normal: make COVID-era competitions as much like what we're used to as we can. But, as those of us who've administered virtual arguments and competitions have discovered, doing this well requires thoughtful adaptation. The document give soup-to-nuts advice on how to adapt competition rules and procedures without digging unduly deeply into the technological weeds. If you or someone you care about runs a moot court competition, I respectfully urge you to read it and to follow up with our group if there's anything we can do to help.
The National Online Moot Court Competition: The pandemic has prompted a consortium of law schools—inspired in part by pioneering efforts in the trial-advocacy community—to create a new moot court tournament. Registration is open now. The registration form is accessible here; the rules here; the proposed competition timeline here. It is especially cool that this competition is built from the ground up as a virtual competition. Schools that register will receive a technology package designed to make sure that all teams compete on a level virtual playing field. The competition's rules and design thoughtfully incorporate the practices I discuss above. This is not surprising; the representatives of the schools sponsoring the tournament were active in producing the guidance. And, more generally, the tournament looks to incorporate general best practices for moot court: advocates will argue in four preliminary rounds and will be guaranteed a large, well-qualified pool of brief scorers and oral argument judges.
The new leaders of the National Association of Legal Advocacy Educators: I posted three weeks ago about the election of officers for this new organization. It is done. The group's prospective members have voted on an excellent slate of candidates. As was inevitable, they have chosen a great board that brings together advocacy professors and coaches with deep and wide-ranging experience:
- President: Rob Galloway, South Texas College of Law Houston
- Vice President: A.J. Bellido de Luna, St. Mary's University School of Law
- Secretary: Megan Chaney, Shepard Broad School of Law–Nova Southeastern University
- Treasurer: Robert Little, Baylor Law School
- Regional Representatives:
- Tim Wilton, Suffolk University Law School
- Joanne Van Dyke, Syracuse University College of Law
- Jodi Hudson, Seton Hall School of Law
- David Johnson, George Washington University School of Law
- Jennifer Franklin, William & Mary Law School (and the Appellate Advocacy Blog)
- Suparna Malempati, Atlanta's John Marshall Law School
- Jennifer Copland, Michigan State University College of Law
- Judge Jim Roberts, Samford University's Cumberland School of Law
- Ana Montelongo, IIT Chicago-Kent College of Law
- Patricia Wilson, Baylor Law School
- Michaelle Tobin, University of Missouri–Kansas City School of Law
- Laura Rose, University of South Dakota Law School
- Judge John Madden IV, University of Denver Sturm College of Law
- Spencer Pahlke, UC Berkeley Law
- Susan Poehls, Loyola Law School
Wednesday, July 8, 2020
For the past couple of years, members of the law school advocacy community have worked to create an organization that represents the interests of legal advocacy educators. It's almost here. We have a name: the National Association of Legal Advocacy Educators. We have bylaws. And soon, we'll have officers.
Hence this post. To move things forward, the organization will launch elections this week for its inaugural executive board and regional representatives. Anyone who is interested in and eligible to become a member of NALAE may vote. And membership is open to anyone who is currently an advocacy teacher at the law school level. As the bylaws state, that definition is broad: "an 'advocacy teacher' is any person who is engaged in teaching trial advocacy, appellate advocacy, alternative dispute resolution, client counseling, or any other skills related to litigation and trials, at the law school level. This definition includes tenurial, tenure-track, non-tenurial, and adjunct professors as well as those who coach law school teams that compete in these fields."
If you're currently an advocacy teacher at the law school level and you'd like to vote, please register via this link as soon as you can. When you access the registration form, you can check out answers to frequently asked questions about the organization and elections. NALAE's Election Committee will host an online candidates' forum tomorrow (Thursday, July 9) at 7:00 pm, and we'll send a link to Zoom event to all registered voters.
I am excited to see this organization come together, particularly now. This summer, the national communities of appellate advocacy, trial advocacy, and dispute resolution teachers, coaches, and competition organizers have worked hard to respond to the challenges our students face in learning and competing virtually. We're seeing what's possible when we collaborate. NALAE will help our communities realize a broad, deep range of possibilities. The organization's goals:
a. To encourage the expansion and improvement of and diversity in student-focused law school advocacy skills education;
b. To support innovation through communication and dissemination of information among law school advocacy programs;
c. To improve the quality of competition experiences to best teach skills and professionalism;
d. To work cooperatively with other organizations interested in advocacy skills education, the improvement of legal education, and the improvement of client representation;
e. To promote conferences and other educational activities designed to facilitate the other purposes of the organization;
f. To further the interests of all law school advocacy skills teachers; and
g. To promote access to justice, including the right to jury trials, fair and equitable dispute resolution, and the rule of law.
Saturday, June 27, 2020
Moving from Pandemic Emergency Zoom Oral Arguments to True Oral Argument Online: Preparation and Professionalism
In March, we had only hours to transition from in-person teaching and law practice to remote options. As many internet memes show, that led to some memorable court appearances sans pants, from closets and bathrooms. Recently, we’ve been able to step back and assess our remote experiences to see what we can use for better practice and teaching, even as we return to in-person work. I’ve attended several excellent sessions on online teaching, and I send kudos to William & Mary Law for its fantastic two-day Conference for Excellence in Teaching Legal Research & Writing Online. (If you could not attend, you can view asynchronous postings here: https://law.wm.edu/academics/intellectuallife/conferencesandlectures/excellence_online_teaching/index.php.) Like many of you, my inbox is full of invites for even more webinars and conferences I am not able to attend.
Luckily, Jill Wheaton of Dykema Gossett recently wrote a summary of the May 4, 2020 ABA Appellate Judges Council CLE webinar on “Appellate Advocacy in the Age of COVID-19.” The ABA’s program featured judges, a state appellate court chief clerk, and appellate practitioners speaking on how appeals courts will use remote appearances moving forward. As Wheaton explained, the panel presented “thoughts about, and recommendations regarding, telephone or video appellate arguments” and suggested counsel “do everything they can to make a remote argument as much like an in-person argument as possible.” Jill M. Wheaton, Appellate Advocacy in the Age of COVID-19, Appellate Issues--2020 Special Edition 1 (ABA May 27, 2020). Overall, the recommendations for practitioners stressed professionalism in how we approach video appearances. In other words, be prepared and yes, wear pants.
Part of our preparation for oral argument today should include a test run of our technology. Whenever possible, appellate practitioners should do moot courts before oral arguments. Now, we should make our moot courts a test of both online systems and legal arguments. Since many courts already used some type of internal video conferencing before COVID-19—and a few trial and appellate courts allowed video argument on occasion before 2020--the clerks and judges are already familiar with some remote platforms. Id. They expect us to be familiar with the platforms as well. In fact, many courts have videos of past virtual oral arguments online, and counsel can watch the videos as part of their oral argument preparation.
We should also be as professional as possible in every detail of our online appearances. Hopefully, we know to avoid the meme-worthy mistakes of March and April, by dressing in full suits and using a professional-looking digital background or physical space free of clutter and noise for a video appearance. The ABA panel stressed smaller points as well. For example, many courts still expect counsel to rise when the bailiff calls the case, and the panel judges noted they prefer advocates to stand when speaking. Id. at 2. Therefore, consider either using an adjustable desk, so you can stand when speaking but sit when opposing counsel argues, or use a stool so you can stay at eye level. The practitioners on the ABA panel suggested using a stack of books to raise your computer to standing level if needed, and to be sure your camera is on the top of your monitor to help you look directly at the judges during the argument. Id. Finally, counsel should remember they will be on camera for the entire hearing, even when opposing counsel is speaking. Id. Thus, find a way to communicate unobtrusively with co-counsel and your client, if needed.
We all want life to “return to normal,” but some form of remote oral arguments will no doubt remain after COVID-19 leaves. For now, “courts have been forced to become creative to continue to advance their dockets, requiring the bench and bar to become creative as well.” Id. at 3. Hopefully, these tips from the ABA panel can help us all be more creative, prepared and professional for this new normal.
June 27, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)
Monday, April 27, 2020
Nearly a lifetime ago (ok, it was just a month ago), I posted tips on how to conduct a virtual moot court competition. Since that post we have had some other great posts on remote oral argument and presentation, including these tips from Texas Supreme Court Justice Eva Guzman.
We held the final round of our moot court competition on April 16. Based on that experience, and a few other things I learned along the way, I thought I would offer my final thoughts and tips on virtual moot court competitions, in case we are all doing this again in the fall.
(1) Stagger start times. For our competition, we typically had two separate panels of three judges. Each panel heard two arguments--one starting at 5:30 pm and one starting at 6:30 pm. In my earlier suggestions, I recommended having separate Zoom links for each argument even if the panel was the same. That definitely worked well. But, if I could do it over, I would have had one panel start either 15 minutes earlier or 15 minutes later than the other panel. Why? Well, I "zoomed" into the first argument for each panel, just to make sure that the judges were present and that there weren't any questions. I ended up having one Zoom open on my laptop and one open on my tablet. This was a lot to manage, especially if there were issues that needed to be resolved. A 15 minute staggered start time would have alleviated some of my stress.
(2) Have back-ups. I wish that I had designated a back-up bailiff and judge for each round. We only had one judge who wasn't able to make it, but we did have bailiff sound/video issues. I was able to get those issues resolved with minimal delay, but having a designated back-up would have been even easier.
(3) Develop an online scoring survey. We ask our judges to fill out a fairly detailed score sheet. I take the scores and enter them into a complicated spreadsheet that incorporates the judges' scores and the student's brief score. When we have an in-person competition, I can look at the score sheets right away and identify anything that isn't filled out correctly. For an online competition, I had to wait to receive the score sheets. Then, if there were any problems, I had to get in touch with the judges. This wasn't an issue with the early rounds, but by the eliminate rounds, I needed to notify the students advancing quite promptly. If we do this again, I will work with our IT department to develop some sort of online tool that the judges fill out instead. This would hopefully help me get the scores sooner, and also ensure that the score sheets are completely filled out.
In addition to these general points, here are a few points from the final round:
(1) Use and circulate a background. The version of Zoom on my home laptop allows me to use a background without a green screen. I wish that I had circulated a background to the students and judges to use to make it a little more uniform.
(2) Figure out an online timer. I didn't use an online timer. Rather, my plan was to hold up time cards. I regret that choice. The time cards didn't show up with the background, so I ended up holding up fingers instead. I wish that I had tested the time cards to know that they wouldn't work. Then I would have definitely figured out how to put a small clock on the screen.
(3) Expect the unexpected (or be sure to lock your office door). Our final round started at 5:30 pm on April 16. I had told my spouse in the weeks leading up to the final argument that he would be on toddler duty all night long. I ordered dinner to be delivered, and reiterated to him right before the round began that I was unavailable. Well, as luck would have it, at about 5:50 pm my very tall, just turned 2 year old discovered how to open doors. And, as I am sure that you have guessed, the first door that he opened was the one right into my office as the Respondent was arguing. My microphone was muted, and the background kept him mostly hidden, but he was still a bit visible (as was my husband who, with a look of horror on his face, tried to quickly remove him from the scene). In hindsight, it was pretty humorous. I wasn't able to keep a poker face on while it happened, which I felt bad about. Now I know to lock my office door if I don't want to be disturbed.
Sunday, April 19, 2020
In law school, students study legal doctrine in many areas of the law and spend a substantial amount of time reading case law, writing memorandums and briefs, and engaging in real-world simulations.
Of course, while the law is relevant to the disposition of any case, it does not often determine the outcome of a particular case. For example, statutes or constitutional provisions may be ambiguous and precedent may not adequately address the relevant legal question. Rather, the most important aspect of a case is the facts. The facts often determine how the law is applied and present equitable considerations that counsel in favor of a particular outcome.
Thus, when drafting a trial brief, appellate brief, or pretrial motion, the statement of facts is critical and, arguably, the most important part of your brief. Below are several tips that will help to maximize the persuasive value of your statement of facts.
1. Tell a story
In your statement of facts, do not simply list the facts or describe the facts in a bland or boring manner. Instead, tell a story – and make it interesting. Doing so will capture the reader’s attention and engage the reader in your story. Consider the following examples:
When the plaintiff was terminated, the defendant (the plaintiff’s employer) completely disregarded the relevant terms of the plaintiff’s employment. Furthermore, the defendant made disparaging and insulting remarks to the plaintiff that caused the plaintiff to suffer substantial distress, and that demonstrated the wrongfulness of the termination,
When terminating the plaintiff, the defendant unapologetically stated, “I don’t care what the contract says because I can do what I want and you could never afford a lawyer.” Additionally, the defendant repeatedly berated the plaintiff, calling her “pathetic, a loser, and an embarrassment to the company.” The plaintiff left the defendant’s office in tears, and as she existed, the defendant yelled, “get the f*** out.”
The second example is far more effective. Through the use of specific facts, it shows, rather than tells, the court why you should win.
Of course, when drafting the statement of facts, you should avoid unnecessary adjectives and over-the-top language.
Finally, remember that you do not have to state the facts in chronological order. Although this may be appropriate in some cases, you can – and should – be creative in your organization. For example, if your case involves the breach of a contract, you may want to begin by describing the events constituting the breach and detailing the damages that your client suffered. Simply put, just as some movies begin with the ending, some briefs can too if doing so enhances the persuasive value of your argument.
2. Don’t be argumentative
One of the worst things that you can do in a statement of facts is to argue. First, your facts should be drafted in a manner that makes you appear objective. Doing so will engender credibility with the court. Second, arguing in the facts may lead a court to believe that you are presenting an incomplete or biased version of the facts. Third, and perhaps most importantly, when you argue, you are telling, rather than showing, the court why you should win. No one likes to be told what to do.
3. You can – and should – still advocate
Although you should not argue, you should still advocate. For example, you should emphasize favorable facts over non-favorable facts. You should organize the statement of facts in a manner that highlights the most favorable facts and de-emphasizes unfavorable facts. In so doing, you will be advocating without arguing, and persuading without misleading.
4. Acknowledge unfavorable facts
Be sure to acknowledge unfavorable facts. In so doing, you should rely on other facts to show why the unfavorable facts should not affect the outcome you seek. If you conceal or misrepresent unfavorable facts, your adversary will highlight this error and your credibility with the court will diminish substantially.
5. Eliminate irrelevant facts
You should never include irrelevant facts in your brief. Doing so will undermine the persuasive value of your statement of facts and distract the reader. Consider the following example:
The plaintiff is a private figure and employed as a cashier at Whole Foods Supermarket. On January 11, 2012, while the plaintiff was in the midst of her shift and serving customers, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.
The plaintiff is a private figure who was born in Austin, Texas. A talented musician and artist, the plaintiff attended the University of Texas for two years before deciding to pursue a career as an actor. The plaintiff enrolled at the Texas Academy of the Arts and completed a twelve-week intensive dramatic acting program. Soon thereafter, the plaintiff auditioned for many roles, including on the well-known soap opera General Hospital and the primetime television show Breaking Bad. During this time, the plaintiff obtained a job at Whole Foods Supermarket to make ends met while auditioning. The plaintiff enjoyed good relationships with her colleagues. Unfortunately, two months after being employed, and during her afternoon shift, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.
The first example is far more effective than the second. The second example contains facts that are entirely irrelevant to the legal issues (who cares about the plaintiff’s acting career?), and these facts distract the court from the facts that support the relief plaintiff seeks.
6. Describe the record accurately
Always describe the record accurately. If you misrepresent facts in the record, you will immediately – and perhaps irreparably – damage your credibility with the court.
7. You can include law in the facts if it's appropriate
When writing the statement of facts, you can, in appropriate circumstances, include relevant case law or statutory language if doing so would assist the court in resolving the legal issue. For example, assume that your client was arrested on suspicion of driving while intoxicated, and upon arrest, law enforcement, in violation of the U.S. Supreme Court’s holding in Riley v. California, searched your client’s cell phone without a warrant. In your statement of facts, you could – and should – say the following:
On February 20, law enforcement officers stopped the defendant while he was driving home. During the stop, the officers detected the smell of alcohol and subsequently administered a breathalyzer test. The defendant’s blood-alcohol level was .09, in violation of the legal limit of .08, and the defendant was placed under arrest. While under arrest, and over the defendant’s objection, law enforcement conducted a warrantless search of the defendant’s cellular telephone. This search was unlawful because, in Riley v. California, the United States Supreme Court unanimously held that warrantless searches of cellular telephones incident to arrest violate the Fourth Amendment. Accordingly, all evidence seized from the defendant’s cellular telephone should be suppressed.
As you can see from the above example, the U.S. Supreme Court’s decision in Riley is relevant to the legal question and demonstrates that the search was unlawful. Thus, in a situation like this, including the relevant case law will enhance the persuasive value of your argument and demonstrate beyond doubt that the court should grant the relief you seek.
8. It's not just what you say, but how you say it
Be sure to draft a well-written, well-organized, and concise statement of facts. For example:
- Avoid long sentences (over twenty-five words)
- Avoid complex or esoteric words (and Latin)
- Use transition words to ensure flow and clarity
- Avoid unnecessary repetition
- Avoid long paragraphs (paragraphs should be approximately three to five sentences)
- Eliminate unnecessary adjectives and minimize the use of adverbs
- Avoid nominalizations
- Never insult the lower court or your adversary
- Ensure that your brief is free of spelling errors and grammatically correct
- Know when to break the rules to maximize persuasion
Ultimately, the statement of facts is your best opportunity to explain why you should win. Following the above tips will ensure that you avoid the common errors that courts frown upon and that undermine the persuasive value of your brief.
Sunday, April 12, 2020
Given the unprecedented and challenging times that have arisen due to the coronavirus, many courts (and law schools) are now conducting oral arguments online (e.g., via Zoom). For many lawyers and most law students, this is likely the first time in which they have been required to deliver oral arguments online.
Below are several tips (some rather obvious) to help lawyers and law students deliver effective and persuasive online oral arguments.
1. Make sure that you are positioned correctly
When giving an oral argument – or any presentation – online, be sure to observe the following guidelines.
First, whether you are seated or standing, make sure that the camera on your computer is at eye level. Second, you should position yourself so that you are approximately at arm’s length from the camera. Third, to ensure that you are making eye contact with the judge (or professor) always look straight into the camera and avoid looking at the screen. Fourth, make sure that your volume is at the appropriate level so that you can be heard clearly.
2. Choose a professional background
Be sure to position your desk and computer in an area that includes a professional background and that omits any distracting images. Additionally, eliminate all excess noise.
Also, make sure that the lighting is properly set. For example, if there is too much light in the background, it can cast a glare on the screen and distract the person to whom you are speaking. Finally, be sure to dress professionally.
3. Avoid Unnecessary Physical Gestures
When presenting your argument, avoid unnecessary movements (e.g., hand gestures), particularly those that will take you out of the camera’s range. Unnecessary movements will distract your audience and detract attention from the substance of your argument.
4. Get to the point quickly – the judge (or professor, or anyone) may get more easily distracted in an online format
In an online oral argument, there is an increased possibility that a judge (or professor, or anyone) may get distracted more easily, particularly if the environment within which a judge or professor is hearing the argument is less than ideal (e.g., in a home where other family members are present in the immediate vicinity). As such, you should prepare a short, one-page outline that contains the strongest legal and factual arguments supporting the remedy you seek and state them at the beginning of your argument. Indeed, the most persuasive oral arguments include a powerful beginning where an attorney: (1) states clearly the outcome and remedy that the attorney seeks; and (2) explains why the law and facts support that outcome. In doing so, be sure to omit extraneous or irrelevant facts and legal authority.
5. Follow all of the rules regarding oral argument as if you were giving the argument in person
You should approach online and in-person oral arguments in the same way. For example:
- Have a powerful introduction and roadmap
- State clearly the outcome you seek and begin with the most favorable law and facts that support this outcome
- Address weaknesses in your case (e.g., unfavorable law and facts) and explain why they do not affect the outcome you seek
- Answer the judge’s questions directly
- Be prepared to adjust your argument strategy depending on the questions and concerns expressed by the judge (or judges)
- Always be honest – never mislead the court or attempt to hide unfavorable law or facts
- Don’t be a jerk – never attack your adversary and never use over-the-top words or unnecessary adjectives
6. Be prepared for technical issues
Technical issues sometimes arise when using online platforms such as Zoom or Skype. For example, when I was interviewed via Skype for a faculty position several years ago, my screen suddenly went black and I could not see the faculty members who were interviewing me (although they could still see me). If any technical issues arise, be sure to maintain your composure and go with it. Indeed, in the interview where my screen went black, I still got the job.
7. Remember that this is new for everyone
Don’t be intimidated or overly concerned about performing an effective online oral argument. This is a new experience for many judges and law professors. At the end of the day, just be yourself – speak conversationally and remember that the skills needed to deliver excellent in-person oral arguments are largely the same as those needed to deliver excellent online oral arguments. And appreciate that, in delivering an online oral argument, you are learning a new skill that may prove valuable in the future.
Monday, March 23, 2020
In the wake of the COVID-19 outbreak, Arizona Law decided to move our 2L/3L intramural moot court competition online. Because our university's announcement about moving to online classes came during spring break, we determined that students who had traveled home for spring break would probably want to stay there to complete classes. Therefore, we needed an option to allow students to conduct arguments remotely.
While our competition is rather small, it is important! The winners go on to represent our school at the ABA's national appellate advocacy competition.
While our competition rounds start later this week, for the past several days our moot court board has been hosting practice rounds via Zoom. I thought it might be helpful to other schools if I shared some tips for creating the competition and for running the rounds.
Competition structure: Each round consists of three judges, a bailiff, and two advocates. The bailiff is responsible for creating the Zoom meeting link, disseminating it to participants, and keeping time for the round. I have asked the bailiffs to list me as a co-host for the round in case of an emergency. As soon as all participants are in the meeting, the bailiff will create break-out rooms for the advocates and the judges. You can find more information about Zoom breakout rooms here. The breakout rooms allow the judges to ask the bailiff any questions before the round begins. They also allow the judges to deliberate after the round.
Although the judges preside over two consecutive rounds, we are creating a Zoom link for each separate round. This prevents the second group of advocates from disrupting the end of the first argument.
Tips for judges: On Friday, I asked our moot court board what challenges they had seen in running the practice rooms. They had some GREAT tips for judges to help make rounds run smoothly.
- Technology Tips
- Be sure to keep your microphone muted when you are not talking.
- Don't forget to unmute when you want to talk.
- I think that the above two points are the cardinal rules for any and all Zoom meetings.
- Consider wearing a headset or earbuds to cut out background noise and to allow yourself to hear and be heard better.
- Try to minimize Internet usage in your house during the argument. Your connection will be better if your kids aren't streaming Disney+ while you are trying to judge (or argue!) a round.
- When I am teaching an online class I try to close everything on my computer but Zoom and my notes. I don't want loud email notifications during my class.
- Use gallery view on Zoom to better see everyone.
- Setting Tips
- Be mindful of the lighting. Back lighting will make you hard to see. Front lighting will help you appear clearer.
- Be sure that there is nothing distracting behind you (or in the room with you!). My cats get locked out of my office during most meetings.
- Argument Mechanics
- Don't mark off for a poor sound connection. Students have various levels of Internet service.
- Also, don't mark off for lack of professional attire. Many of our students went home for spring break not knowing that they would be staying home indefinitely while the whole world shut down. Now, as stores shut down, they might not have the ability to get professional clothes in a timely manner.
- Don't be afraid to interrupt! And don't be offended if students slightly talk over you. Given the lag with online communications, some amount of interruption is inevitable.
- Try to lean forward, raise your finger, or something to signify to the advocates that you are trying to ask a question.
- But please ask questions! This makes the students' experience so much better!
- Don't be offended if students ask for clarification.
Tips for Participants
- Read the judge tips--many of those apply to you!
- Use gallery view to see all judges and the bailiffs. Watch carefully for social cues that indicate the judge has a question, like leaning forward. If you see such a cue, pause.
- Dress as professionally as you can in the situation. If you don't have a suit (or at least a jacket) try to wear something neutral. Now isn't the time to pull out your "taco cat shirt." (sorry, I love my taco cat shirt).
- Be mindful of your background. You don't want the judges asking you about the poster for your favorite political candidate that is hanging the background.
- Have fun and be patient! COVID-19 is fundamentally changing how courts operate. Some of this is good. It is time for courts to get up to speed on technology and offer more video/telephonic hearings. But, these types of proceedings require adjustment by everyone involved. Your video moot court experience will be a valuable one.
Good luck to all participants, and we here at the Appellate Advocacy Blog hope that you stay safe and healthy!
Saturday, March 21, 2020
I hope everyone is staying safe as we navigate our new COVID-19 reality. In response to the virus, some law schools are canceling oral arguments and moot courts, while others are considering moving arguments online.
At Pepperdine Caruso School of Law, we just successfully held the preliminary rounds of our annual first-year moot court competition via Zoom. We are one the first schools to take such a large tournament--with multiple levels of rounds and cash prizes--online. As I helped move us to an online format in one crazy week, so many people inside and outside of Pepperdine gave me incredible support. In an effort to pay that support forward, I am sharing our process here. I hope our lessons can help other schools and moot court competitions make this transition. Our experience was very positive. The students are grateful we gave them a formal oral argument opportunity, and many sent thank you emails and even fun Zoom screen shots to us.
In practice, many of us have appeared via video or phone for short hearings, and even for appellate oral arguments. See https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000995 (video and audio recordings of the Ninth Circuit argument in Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019), where Judge Wardlaw appeared via Zoom). Currently, courts all over the country are holding their oral arguments online. See, e.g., https://www.courts.ca.gov/2dca.htm (California Court of Appeal website noting: “Counsel will appear remotely via video conference, by telephone conference, or by other electronic means as available and arranged by the Clerk's Office”).
We knew we wanted to give our students the traditional moot court experience in these new circumstances, and we chose to conduct arguments using Zoom. We made one major change from the past, as we decided to let students opt out of the arguments to help students who had to leave our dorms quickly or who were otherwise struggling. Happily, about half of our first-year students still chose to participate.
We usually have two teams of two advocates each, or four students, argue in each room of our preliminary argument rounds. With about 90 students arguing this year, we placed 4 students and 2 judges in each of our 23 Zoom "courtrooms."
To run courtrooms at more or less the same time, we needed 23 Zoom host judges who could create Zoom meetings open to anyone with the links. These judges also kept time, though we had the students run timers on their phones too. We suggested on-screen timers shared to the whole courtroom, but the students were concerned the timers would take too much screen space, even with Zoom’s side-by-side view.
Once we identified trusted members of our community to be the Zoom host judges, we created and shared a step-by-step guide for making an open Zoom link. We asked hosts to name their meetings "Courtroom One 4:15," and so on. We then collected the hosts' Zoom links and added them to our Google Sheet listing all the students, courtrooms, and argument times. We shared the sheet with the courtroom assignments and links to all of our first-year competitors.
We had great support from our faculty, who joined some Moot Court Team members and Law Review students, as well as a few alums, to be our roughly 40 judges. Some judges helped with multiple rounds, and many judges told us this was almost as fun as in-person arguments.
We ran three preliminary rounds, to spread out the ability for our Moot Court Board and me to “Zoom in” to meetings and help as needed. We used ten courtrooms each during two evening rounds, and we needed to pop in to only two courtrooms to help. The next morning, our three courtrooms ran without a hitch. Having trusted judges as hosts really helped, and we recommend this approach.
We made our score sheet into a Google Form for the judges. It was fun to watch the scores roll in after the rounds. Moreover, our competition co-chairs had a spreadsheet right away with the score sheet data. These chairs could quickly identify our top four teams for the semi-final round, unlike when they type in scores from paper forms.
We will have four teams in our semi-final round Monday night, and then the top two will go to our final round Wednesday night. We will share the Zoom link for our final round courtroom with our whole school, and we will have sitting judges serving on our final round bench. We made the judges a separate deliberation room Zoom meeting, to be doubly sure their voting discussion will be confidential.
In our law school virtual classrooms today, we can still give our students a traditional first-year highlight by moving oral arguments online. Many of our courts are doing the same thing, and after holding these successful digital arguments at Pepperdine, I can promise you will be glad you saved moot court by moving online too.
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.