Sunday, September 26, 2021
In the late 1980s, I was invited to participate in a project designed to help the Supreme Court of India address a backlog of cases that stretched back a decade. One obvious problem, it seemed to me, was that oral argument for a single case could span days or, in important matters, more than a week, as argument seemed to give rise to lengthy flights of oratory. On my second day in New Delhi, I met with members of their Supreme Court bar. Soon after the meeting began, one practitioner sought to confirm that the U.S. Supreme Court limited oral argument to 30 minutes per side. Upon receiving an affirmative answer to that question, he then asked, “how do you even warm up?”
The events of that morning recurred to me when I read the Supreme Court’s recent announcement that it was adopting a new procedure as oral argument returned to the courtroom after a pandemic-period process of argument by telephone. The procedure for telephone arguments gave the advocate two uninterrupted minutes to introduce the argument, followed by two minutes of questioning by each justice, seriatim, in order of descending seniority. The procedure was a significant departure from the free-for-all arguments that earned the Court the reputation as a hot bench.
That type of fast and furious questioning during in-court oral argument is often associated with the late Justice Antonin Scalia, who showed no reticence in lobbing question after question at counsel even during his freshman term. Scalia’s then-unusual amount of questioning reportedly caused Justice Lewis Powell to wonder if the new justice even realized the rest of them were there. By the time Justice Clarence Thomas joined the Court, nearly all justices had adopted an active questioning style, though Thomas, believing it was important to let the advocates speak, remained largely silent for years at a time. During the pandemic’s telephone procedure, though, Thomas, as the senior associate justice, became a regular questioner, showing that procedural changes in oral argument can affect its dynamics.
As the Court gets underway for the new term, it has adopted a combination of the two procedures. Advocates will still experience 30 minutes of sharp questioning, but then time is added to allow the justices to ask additional questions in order of seniority, just as they did when arguments were conducted by phone. One of my co-bloggers has already expressed approval of the new format https://tinyurl.com/2r49ufkc. I’m more skeptical.
Although the Court has admonished advocates to “respond directly to the questions posed,” rather than make “additional arguments not responsive to the question,” some oralists, no doubt will find the opportunity to relate an answer to an argument not yet covered in the courtroom irresistible. Those who can do that seamlessly will likely get away with it. One obvious change is that the new procedure is likely to extend oral argument to unknowable lengths of time. Perhaps the justices will have asked all their questions in the earlier period, but that seems unlikely. The extra time will not just lengthen the arguments, but will likely shift oral argument strategy, based on the knowledge that some issues the advocate purposely reserves are likely to be aired during the justice-by-justice round.
In addition, the new procedure may change a justice’s decision about when to ask a question. Some justices may choose to forego a question during the unstructured argument time because another justice is forcefully seeking an answer to something else during that earlier period. Rather than interrupt the line of questioning as often occurred in the past, a justice may reserve the issue for the latter time period. Doing so, however, could be a disservice. The answer elicited may show the issue to be a critical one that deserves more time for exploration than might remain, which may not have been true if raised earlier.
Moreover, when questions are posed in order of seniority, particularly subsequent to the usual oral-argument period, the number of questions left unasked will diminish by the time the more junior justices have their turns. If the junior justices begin to appear mute as the formal questioning ends, courtwatchers and the public may mistakenly take away a false impression of disinterest. To combat that image, a junior justice may feel impelled to jump into the conversation more actively in the earlier part of the argument than they might otherwise choose to do. The result will undoubtedly affect the nature of oral argument, but in an artificial way.
Appellate lawyers – and appellate courts – will watch closely as the new procedure is implemented. Advocates will adjust their strategies, the Court itself may tinker with the procedure as experience suggests changes, and federal circuit courts may choose to adopt it or a variant on it for their own arguments. When telephone arguments were in place, Chief Justice John Roberts kept a firm hand on limiting the justices to their allotted questioning time. The new procedure, which has no apparent time limits on the justices’ questions or the responses, may call for even more stark time management – perhaps even as strict as those enforced by Chief Justice Charles Evans Hughes, who, when time was up, could stop an advocate in the middle of the word “if.” With the new term commencing October 4, many people will be watching the process of oral argument with the same intensity as they scrutinize the merits of the arguments themselves.
Friday, September 24, 2021
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
The Supreme Court announced that it will hear an abortion case in the 2021 term that asks the court to overturn Roe v. Wade. The case concerns a Mississippi abortion law that bans abortions after 15 weeks with exceptions "only in medical emergencies or for severe fetal abnormality." The law includes no exception for rape or incest. The case is set to be heard on December 1. See reports from CNN, CNBC, and NPR.
The Supreme Court will adopt a hybrid argument format when it resumes in-person argument for the October term. The format will combine the pre-pandemic “free-for-all” style with the pandemic “turn-taking” style. Under the format, after a lawyers’ opening statements and during the allotted argument time, justices will pose questions as they did before the pandemic shut down. According to SCOTUSblog, during the argument, “the justices can presumably interrupt both the arguing lawyer and each other at will.” Then, after a lawyer’s argument time, “each Justice will have the opportunity to question that attorney individually. Questioning will proceed in order of seniority.” See the Guide and reports from Bloomberg and the ABA Journal.
On September 22, the Federalist Society aired “Supreme Court Preview: What is in Store for October Term 2021.” Find the YouTube link here.
Appellate Court Opinions and News
The Fourth Circuit vacated its recent ruling that gun laws barring sales to those under 21 are unconstitutional (a ruling we covered in July 2021). The court decided that the decision was rendered moot when the plaintiff turned twenty-one. According to the court, “[a]fter the opinion issued but before the mandate, [Plaintiff] turned 21. And that made her claims moot.” “Despite efforts to add parties and reframe her claimed injuries, it is too late to revive this case.” See the order and reports from Reuters and the Associated Press.
The Fifth Circuit heard a challenge to the Mississippi voting rights act. The case seeks to overturn a Mississippi law that permanently disenfranchises people who have been convicted of certain felonies. The argument can be accessed here. See a report from Courthouse News.
Wednesday, September 22, 2021
Oral argument in the supreme court has seen many changes over the years. In the early days of the Republic, counsel would often spend hours, sometimes days, arguing a single case. At that time, oral argument, rather than briefing, was the primary vehicle for counsel to communicate their points to the court. Over time, the emphasis switched from speaking to writing, and oral arguments got shorter--down to two hours shortly after the Civil War, to one hour in the early 20th Century, then to the current limit of 30 minutes in the late 1960's. How justices have used that time has also changed. Until the mid-1980's, it was common for justices to ask just a few questions--if any--during oral argument. It was much more an advocate's chance to pitch their view of the case. But all that changed with Justice Scalia's appointment in 1986, as his extensive questioning prompted other justices to take a more active role during arguments. One famous exception was Justice Thomas, who rarely spoke during argument, believing it rude to interrupt counsel's presentation.Before the pandemic, a "hot bench" was very much the norm, with most advocates having little time to make affirmative points between answering a bevy of questions from the court.
The pandemic changed all that, with the court opting to hold telephonic arguments with two new notable rules: (1) counsel had two minutes to say her piece and then (2) each justice had a set time in which to ask questions, uninterrupted by the other justices. Chief Justice Roberts kept the clock and enforced the time limits.
Some of these changes are here to stay, at least for now. SCOTUS this week released an updated oral argument guide ahead of returning to in-person oral arguments for OT 2021, which retains the pandemic changes and cautions counsel not to stray from a questioner's direction. A few thoughts on how this affects oral argument preparation and presentation going forward.
- Justice Thomas. All signs currently point to Justice Thomas continuing his active questioning at argument, since he will have a set time to ask questions without interrupting or being interrupted by anyone.
- Affirmative points. Going in to most oral arguments, counsel have a choice to make--start with an affirmative point, or pick up the conversation where it left off and start answering questions. Counsel can still take either tack in this new(ish) format, but I think counsel will tend to skew to making affirmative points, since this will be their best or only chance to control the topic of conversation.
- A little smoother? The new rules were somewhat awkward to enforce during telephonic arguments, as both the justices and counsel lacked visual cues to stop or start talking. In person, the rules should be a little smoother as the participants can see and react to each other.
- A little nicer? At its most hectic, oral argument can devolve a bit into a duel of perspectives with the justices sometimes speaking to other justices under the guise of questioning the advocate. I think the new format changes that dynamic a bit and makes the tone--for lack of a more lawyerly word--nicer. The justices are forced to deliberately triage their questions, but can't get interrupted by others and thus are not able to get into a back-and-forth with other justices.
Overall, I like the changes and think they improve both the tone and the presentation of argument. What do you think?
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.
Wednesday, September 8, 2021
The Supreme Court's Office of Public Information announced today that oral arguments for the rest of the calendar year will take place in the Courtroom, but sessions will be closed to the public. Understandable. But here's the good thing: the Court anticipates that it will continue to provide a live audio feed of oral argument, at least for the period where public access to the Courtroom is restricted.
So the Court will return to its traditional unstructured approach to oral arguments rather than continue with the seriatim-questioning approach it adopted for telephonic arguments during the pandemic. And the public will be able to follow arguments in high profile cases like New York State Rifle & Pistol Association v. Bruen in real time.
Sunday, August 29, 2021
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
The Supreme Court struck a CDC moratorium on evictions during the pandemic. An earlier nationwide moratorium lapsed on July 31, prompting the CDC to impose its own moratorium. This CDC moratorium temporarily halted evictions in counties with “substantial and high levels” of virus transmissions. The Court’s decision allows evictions to resume. The decision held that the CDC lacks the authority to act without explicit congressional authorization and ruled that, “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” See the per curium order and reports from the Associate Press, NPR, and The Washington Post.
The Supreme Court revived the previous administration’s “remain in Mexico” asylum policy, refusing to stay a ruling that banned the Biden administration’s attempt end the policy. The policy requires asylum seekers to remain in Mexico while they await hearings in the United States. The Court stated that the decision to end the policy appeared to be arbitrary and capricious. The decision leaves in place the lower court’s ban, which will be heard by an appeals court. See the order and reports from Reuters, The New York Times, APNews, and NPR.
Appellate Court Opinions and News
In a rehearing on the issue, the Second Circuit let stand a lower court’s refusal to grant an injunction against anti-abortion protestors, finding that the district court did not abuse its discretion. New York State sued 13 protestors arguing that protesters crowded women, made death threats against escorts, and blocked the path with posters, which violated the Freedom of Access to Clinic Entrances Act, New York State Clinic Access Act, and New York City's Access to Reproductive Health Care Facilities Act. The district decision rejected the injunction motion, finding that the state had not shown that it would face irreparable harm. The panel on rehearing did not rule on the merits because it found that the lower court did not abuse its "considerable discretion" in denying the injunction. See the order and reports from Reuters and Courthouse News.
The Ninth Circuit affirmed a lower court’s ruling that denied a motion for preliminary injunction by a landlord group attempting to stop Los Angeles from enforcing an eviction moratorium. The court determined that the group could not show a likelihood of success on the merits, finding that, “even if the eviction moratorium was a substantial impairment of contractual relations,” the city “fairly tied the moratorium to its stated goal of preventing displacement from homes” during a pandemic. See order and reports from Bloomberg and The California Globe.
The Fourth Circuit affirmed the death sentence for the gunman who killed nine members of a Black Charleston church in a racially motivated shooting. The court stated that “[n]o cold record or careful parsing . . . can capture the full horror of what [the shooter] did” and that “[h]is crimes qualify him for the harshest penalty that a just society can impose.” The court rejected the argument that the gunman should have been ruled incompetent. The gunman is the first person in the US to be sentenced to death for a federal hate crime. See the ruling and reports from NPR, The Washington Post, and USA Today.
Effective Appellate Advocacy
On September 2, the Ninth Circuit and the Federal Bar Association are sponsoring a free program featuring Judge Margaret McKeown. Judge McKeown will discuss effective brief writing and oral argument. Find information here.
Wednesday, August 18, 2021
The things that helped me most as a law student and young attorney were learning how attorneys that I admired did things--what concrete things did they do to get ready for trial, to understand a record, to prepare for oral argument, etc. I've kept mental (and sometimes written) lists of those things over the years and have tried to pass them on to law students and young attorneys. Here's a checklist I've put together for oral arguments:
- Prepare an outline, go over it a few times the night before.
Just like law school—get your case down to its essence and get out all of the points you want to hit. Odds are you won’t get to everything, and almost certainly not in the order you want to get to it, but it isn’t about you, it’s about the court and its concerns.
Some necessary elements:
a. Decide the points you want/need to make, and make them prominent—put them first, in bold, highlighted, etc.
b. Include record cites and case names after assertions you’re likely to get questions/pushback on.
c. Leave space to write in questions/answers that come up during opposing counsel’s argument.
- Re-read the relevant parts of the record—trial transcript, pleadings, jury instructions, etc. What you read will depend on the case. If it’s a small record, re-read everything; if it’s a large one, then just read pertinent parts. It helps to have all the stuff in the case fresh in your mind when you go to court.
- Re-read the briefs. You’ll be surprised how much you forget about even your own arguments. If you find good cites here, include them in your outline.
- Re-read important cases, statutes, and rules. Memorize if central to appeal issues.
- Spend at least one full day coming up with questions. This was some of the most helpful advice I got when I started out. Don’t neglect very basic questions like what happens to the case if you win/lose.
- Find a quiet place to just think things through and strategize about argument. In normal times, I would come up with really good stuff on the train ride into work, mostly staring out the window and thinking.
- Explain the case to a non-lawyer, see how well you have it boiled down.
- Say your opening out loud—in the car, in the shower, in your office, wherever—just practice somewhere.
- Practice giving your argument while being interrupted with questions (this was John G. Roberts’s approach when he was an appellate attorney).
- Watch other oral arguments—find what style works for you.
- Keep issues on the backburner in your mind—you’ll be surprised what answers come at random times. Write them down when they come
- Have a good argument decompression ritual—get your favorite sandwich, take a walk, do something to get the adrenaline out.
- Come back and listen online to your argument about a week later. Listen for what worked, what did not. Then work on verbal tics (“um,” “so,” “you know,” etc.), pacing, responses, interruptions, etc., and incorporate these into your prep for next time.
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.
Sunday, July 18, 2021
This month marks 80 years since Robert H. Jackson took the bench as a U.S. Supreme Court justice. Students of the Court remember him as one of the most elegant writers to grace the pages of U.S. Reports. Jackson also notably took a leave of absence from the Court to serve as chief prosecutor at the Nuremberg war crimes trial, an extracurricular activity that generated some controversy.
His service on the Court and at Nuremberg overshadows contemporary memory of his earlier service both as Attorney General and as Solicitor General. It was in the latter role, as an advocate before the Court on which he would eventually sit, that caused no less a luminary than Justice Louis Brandeis to suggest that Jackson should serve as Solicitor General for life.
Yet, despite such high praise, Jackson, at the time newly a justice, famously wrote a 1951 article on oral advocacy that expressed doubt about his effectiveness as an advocate. In it, he revealed that he composed three arguments each time he went before the bench. The first argument anticipated a well-planned presentation designed to hit all the critical points needed to prevail and was, of course, presented in an inexorably logical order. The second one did not match the care taken to construct the first one, because it was the argument actually made in court. Jackson described that argument as “interrupted, incoherent, disjointed, disappointing.” The third argument was the “utterly devastating argument that I thought of after going to bed that night.” In other words, the one he felt he should have made.
Even with his experience, Jackson was at a loss on how to avoid the disruption caused by justices “much given to interrogation.” Although the hot bench familiar to him was markedly cooler than that of today’s Supreme Court, a flurry of inquiries on topics outside the flow of his intended argument induced Jackson to adopt a categorical opposition to splitting an argument with a co-counsel.
He explained his position was a product of experience in a case where he was supposed to cover the statute in question while his co-counsel focused upon the regulatory scheme of the agency that employed him. When he rose to speak, the justices peppered him with questions about the regulations. He had not prepared that part of the case and had not anticipated that the case could turn on it. By the time his co-counsel took over, the Court had exhausted their interest in the regulations and now proceeded to ask about the statute. The planned presentation was rendered asunder.
Much of Jackson’s advice seems like an artifact of an earlier era. He repeatedly advises that the facts bear careful and scrupulous description and yet warns that a factual description that attempts to reargue findings of fact or a verdict will be met with “embarrassing judicial impatience.” He also suggests that an advocate should not assume that the panel is familiar with the statute at issue. Modern practice, in contrast, safely presumes that the judges have read the briefs, understand the facts, and the applicable statute, even if argument must focus on some aspect that determines the question presented. Jackson also warns that defeat can be snapped from the jaws of victory in rebuttal, suggesting that the “most experienced advocates make least use of the privilege.” That advice seems too uncompromising. While there are times that waiver of rebuttal makes good sense, experienced advocates often make productive use of that opportunity.
While some of Jackson’s advice appears dated and tied to a different era of oral advocacy, other points confirm that some things never change. Tying your argument to a judge’s extrajudicial writings or speeches, Jackson says, “is a matter of taste,” but usually “bad taste.” He denounces memorized orations, brief-reading, and rambling discourses as inappropriate.
Consistent with the most common advice an oral advocate receives, Jackson emphasizes comprehensive preparation. Knowing the facts, the cases, the context, and the flow of relevant doctrine is a given. Opening with a clear presentation of why the facts or law or a combination of the two inexorably lead to a favorable decision sets the stage for the questions that will likely follow. You want those questions to play to your strengths and to set the stage so that the bench poses difficult questions that exposes weaknesses in the contrary argument being made by an opponent.
Jackson also recognizes that questions from the bench may appear hostile to an advocate’s position. He warns against adopting that assumption, though, because the questions may seek to do nothing more than sharpen the advocate’s position.
A court of last resort will have a consistent group of judges over a significant period of time. Much like the U.S. Supreme Court of today, there may be some fissures that sharply divide the justices. Jackson acknowledges that this will often present a dilemma to an advocate. It apparently did to him. For that reason, he states plainly that he has no advice and suggests reliance on wit.
Jackson’s article amounts to something from a time capsule, undoubtedly presenting a thoughtful and practical introduction to oral advocacy as it was practiced at the highest levels of his day. And, while some aspects of oral advocacy remain the same, others have changed significantly. One thing has not. Jackson ends his article with a parable about three stone masons asked about what they were doing. The first responds that he is doing a job. A second explains that he is carving a pattern. The third indicates he is making a cathedral. He closes by saying that “it lifts up the judge’s heart when an advocate stands at the bar who knows he is building a Cathedral.” Successful advocacy forms the facts and law into a work of architecture. It did so then and does so now.
 Robert H. Jackson, Advocacy before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A J. 801 (1951).
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.
Wednesday, July 7, 2021
A few months ago I found myself drafting a motion for rehearing in an appeal that I had thought would be a fairly easy win for my client. It involved the interpretation of an easement, and there were three strong reasons why the trial court's rulings should have been reversed. The court had denied the requests for oral argument and a new justice issued an opinion that went in a direction neither party really argued.
As I was drafting the motion for rehearing, I asked myself (as I always do when drafting such a motion) where things had gone wrong. The court's opinion was based on what I considered to be dangerously flawed presumptions about provisions that were fairly standard, and that would cause significant problems in the industry if they were interpreted in this new way. If only the court had granted oral argument, and they had telegraphed their understanding, I could have addressed the issue then.
Unfortunately, while oral argument on appeal is considered to be very important to advocates, it is increasingly disfavored by courts. The courts have grown weary of poor presentations that waste a considerable amount of time, and ultimately provide little value. As such, oral arguments are being denied in many courts and cases submitted entirely on the briefs.
The problem with this is that, when done well, oral argument can explore and test arguments in ways that are difficult to test by the briefing alone. We need to convince the courts that it is worth their time again.
This second edition of Point Well Made: Persuasive Oral Advocacy, a practice guide for new and old advocates alike, could go far in helping courts see the value of oral argument again. New lawyers can pick up the book and find simple checklists and guidelines that will help them learn how to properly craft and present their arguments. Seasoned attorneys will find reminders and new tips on remote argument that will keep them updated and current on both thinking and style. And if the practitioners follow this advice, the courts may find oral argument helpful again.
Point Well Made begins with a short primer on rhetoric and them moves straight into audience analysis. New practitioners in particular will find value in acquainting themselves with the mindset and concerns of their judges and justices. Old practitioners may need the reminder that our justices have needs that should be met as the focus of the argument, not just a side-effect.
The book then provides a step-by-step checklist, with examples, of how to prepare the argument (with attention paid to theme development, story telling, and how to handle the law), how to handle questions, and how to draft the argument outline and "script." Both the guidance on how to craft the argument and how to handle questions from different "types" of justices are very valuable to new practitioners.
The authors also provide guidance on verbal and non-verbal communication skills to employ and refine in presenting the argument. They start with the six most common body language errors, then proceed to provide practical advice on how to overcome those errors and avoid others. Thankfully, they recognize that "one size does not fit all" when it comes to body language, and recommend instead variations of stances and techniques that each speaker can try out themselves to develop their own style.
The authors end this second edition with a detailed discussion of the "new normal" of remote argument. I wish I had been given this guidance at the beginning of my time in quarantine. During quarantine (and since) I argued motions via Zoom, participated in a Zoom trial, and have had oral arguments via Zoom. As a result, I learned many of the lessons presented in the book regarding camera placement, lighting, and so on by trial and error. But even with that experience, I found many of the remote argument tips to be helpful and plan on employing them in my next remote argument, particularly with regard to vocal inflection and ramping up intensity, since we tend to appear more "flat" on remote viewing.
Finally, the authors have included appendices with useful checklists for each topical chapter, as well as short exercises to implement the concepts. Practitioners and students alike will find these short exercises to be helpful in driving home the points taught.
As an appellate specialist who also coaches moot court, I wince a bit each time a justice sitting as a volunteer on a moot court panel comments on how much better prepared and practiced the students are than the majority of the "real" lawyers who appear before them in court. If more practitioners read and applied the lessons in Point Well Made, perhaps I would hear that criticism less often, and perhaps the courts would be willing to hear more oral arguments again.
(Image credit: A lithograph from Honore Daumier, Les Gens de Justice, 1845.)
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.
Tuesday, April 27, 2021
Exigent circumstances have appeared on the Supreme Court’s mind (and docket) frequently in recent months. After hearing arguments on the hot pursuit species of exigent circumstances in February’s Lange v. California (a case I blogged about here), the Court heard arguments concerning the so-called community caretaking exception to the warrant requirement in March’s Caniglia v. Strom. Caniglia gave the Justices plenty to chew on, including whether there is really a separate community caretaking exception or if warrantless entry into a home to check on a resident 's wellbeing is simply another species of exigent circumstances.
That question came into clear focus during Justice Breyer’s questioning of the petitioner’s attorney. Breyer struggled to define the bounds of a distinct community caretaking exception. Nonetheless, he believed some such exception must exist so that officers can respond to protect citizens’ wellbeing even if there is no emergency that requires action immediately. Breyer worried that tying officers hands so they could only warrantlessly react to immediate threats would stop them from responding in slower-burning, yet equally dangerous, circumstances—such as an unattended baby crying in a home for hours.
But limiting officer discretion to act warrantless to only scenarios where a response is required in seconds, rather than minutes, is appropriate in the modern world for two reasons. First, given the speed with which warrants can be obtained today, only traditional species of exigent circumstances—like rendering emergency aid, chasing a fleeing felon, or preventing the imminent destruction of evidence—seem truly necessary. As the Supreme Court has acknowledged, modern electronic warrant procedures allow officers to obtain a warrant in just a few minutes. That is little help when officers must act in a matter of seconds. But the ready availability of warrants undermines arguments for many other categorical exceptions to the warrant requirement, perhaps including community caretaking, when time is less of a limiting factor.
Second, Breyer wrongly implies that officers will fear responding warrantlessly to a slow-burning, community-caretaking style “emergency.” Officers genuinely interested in protecting the community should not be afraid for two reasons. First, even if the officers’ instincts prove incorrect and no community safety threat was present inside the home, there is little chance they will face civil liability. The homeowner is unlikely to file a § 1983 suit given the minimal, if not nominal, damages involved. Even if the homeowner sues, current qualified immunity doctrine provides officers broad protection so long as their actions were not contrary to existing precedent. Second, the officer should hardly be concerned if evidence of a crime that they happen to find inside the home is excluded from a later trial. Such evidence would be an unexpected windfall for an officer genuinely interested in protecting the community from a slow-burning harm. Losing windfall evidence should not concern such well-meaning officers.
If the Court limits exigent circumstances doctrine to genuine emergencies, while at the same time curbing other categorical exceptions to the warrant requirement that seem antiquated in light of the rapid availability of warrants today, it will begin lowering the temperature in many officer-citizen interactions. Both officers and citizens can easily understand and justify a narrow exigent circumstances exception. Everyone sees the benefits of allowing officers to respond to genuine, immediate threats. And if officers have little discretion to act warrantlessly beyond those emergencies, citizens may be less wary of any interaction with officers. Counterintuitively, limiting any community caretaking exception to the warrant requirement may actually help officers care for the communities they police.
 Transcript of Oral Argument at 15-16, Caniglia v. Strom, March 24, 2021, No. 20-157.
 Transcript of Oral Argument at 15-16, Caniglia v. Strom, March 24, 2021, No. 20-157.
 Kentucky v. King, 563 U.S. 452, 460 (2011) (outlining these traditional species of exigent circumstances).
 “[P]olice can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the judge's signature to a warrant. Utah has an e-warrant procedure where a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Judges have been known to issue warrants in as little as five minutes. And in one county in Kansas, police officers can e-mail warrant requests to judges' iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes.” Missouri v. McNeely, 569 U.S. 141, 172–73 (2013) (citations and quotations omitted).
Sunday, February 28, 2021
Closing argument is among the most critical parts of a trial, as it provides attorneys with one final opportunity to persuade the jury to rule in their favor. Below are tips to maximize the persuasive value of a closing argument.
Begin with a strong introduction. As with opening statements, the best closing statements begin with a powerful – and memorable – introduction. And the best closing statements repeat, in the introduction, the theme that was used in the opening statement, remind the jury of the strongest facts supporting a verdict for your client, and reinforce the weakest aspects of your adversary’s case.
Repeat the Rule of Three from the opening. In the closing, you should repeat the Rule of Three (i.e., the three strongest reasons supporting a verdict in your favor) that was used in the opening statement and add to the explanation of each point the evidence elicited on direct and cross-examination that supports each of the three points. Simply put, your goal should be to ensure continuity and cohesion throughout the presentation of your case. By following the same structure in your opening and closing (e.g., repeating the theme and rule of three), you simplify the argument for the jury and remind the jury of the strongest points justifying a ruling for your client.
Show emotion and passion. Never deliver your closing argument in a monotone or disinterested manner. Show appropriate emotion. Argue with passion. After all, if you aren’t passionate and emotional about your client’s case, how are you going to persuade the jury to rule in your favor?
Never read the closing. Your goal during the closing should be to relate to the jury. You want the jury to like you and trust you. Thus, speak directly to the jury in an authentic and conversational tone. If you read your closing, you create an artificial – and detrimental – distance between yourself and the jury and, in so doing, you minimize the persuasive value of your arguments. Remember that an excellent closing argument is as much about performance as it is about substance.
Address the weaknesses in your case. Before delivering your closing, put yourself in the shoes of the jurors. What questions would you have about the merits of your case? What weaknesses would you identify? When you identify such questions and weaknesses, address them in the closing. In so doing, you give yourself the opportunity to explain why these weaknesses should not affect the outcome or remedy you seek, and you establish your credibility with the jury.
Discuss the evidence in detail but do so in a manner that tells a story. The best attorneys know how to tell a compelling story at trial. They know how to capture and hold the jury’s attention. They highlight favorable facts and explain away unfavorable facts. And in the closing, the best attorneys use the testimony elicited at trial to complete their story, reinforce the theme and the Rule of Three, and make a passionate case for a ruling in their client's favor. The best attorneys also know what not to do: never merely summarize the evidence. Don’t feel the need to discuss the testimony of every witness. Instead, emphasize and highlight the evidence most favorable to your client and structure your presentation in a manner that compliments your theme (and Rule of Three), and convinces the jury to rule for your client.
Use non-verbal techniques. When delivering your closing, remember that jurors want to see you as a relatable human being who has compassion, decency, and common sense. To establish relatability, you should use strategic movements. For example, move to a different space when discussing each rule of three, even if it is merely a couple of feet. Vary your tone and voice projection. Maintain an open stance, with your feet shoulder-width apart. Use facial expressions and hand gestures to emphasize important points. Your goal is to be authentic, not rehearsed, and convincing, not contrived. And most importantly, be confident, because confidence is everything.
End powerfully. Make your last words your best and most memorable. Your objective is to make sure that the most important points supporting your case stick in the jurors’ memories. Thus, your last sentence or paragraph should impact the jurors’ emotions and sense of justice. It should state with simplicity and uncompromising conviction the reason why you should win. For example, in the O.J. Simpson trial, attorney Johnny Cochran stated, “If it doesn’t fit, you must acquit.” People still remember that line today. And for good reason.
Ultimately, attorneys should remember that a closing argument, like any other aspect of a trial, is a performance. It is not merely a presentation of the evidence and an analysis of the facts. It is a uniquely human endeavor. Thus, your performance, including your likeability, relatability, and authenticity, will matter as much, if not more, than the evidence itself.
Tuesday, February 23, 2021
As the calendar turns to February, the stress of moot court teams preparing for their competitions is palpable in law schools around the country. Students spend countless hours in practices to ensure they are ready on the day of the competition. Often, they spend countless additional hours wallowing in self-doubt over their preparation. Did I do enough to get ready? Have I structured my argument in the most persuasive manor possible? Is practicing more better for me, or should I relax and try to get some rest before the big day?
To those nervous advocates, I offer a simple mantra. Overprepare. Don’t over-rehearse.
By overprepare, I mean that advocates should always strive to be ready for the competition as early as possible. Moot court practice is often psychologically painful. Early practices are invariably embarrassing, as a guest judge is almost certain to ask a question the advocates never considered, catching them flat-footed as they grasp for an answer. But this experience need not feel embarrassing. In fact, it’s the whole point. Practice should expose advocates to as many views of the case as possible, allowing them to feel comfortable that, on the day of the argument, there’s nothing truly unexpected that any questioner can throw at them. The early stumbles are necessary signs of growth. And the earlier they occur, the more likely advocates will be able to adjust their presentation and prepare themselves to answer the difficult questions. Those stressful moments expose the gaps in logic that must be resolved before making an effective argument. Advocates should overprepare by starting early, soliciting challenging views whenever possible, and testing out a litany of analytical approaches while staying in character to see what feels most natural, candid, and convincing.
But advocates should not over-rehearse. There is a fine line between learning how to explain the nuances of the problem and the logical gaps of one’s position and memorizing a stilted script to present to a new group of judges. Advocates must avoid the temptation to generate precisely-phrased responses to each possible question. Often, this leads advocates to fall back on a script during argument. That script builds a wall between the advocate and their audience. It forces the advocate to offer stock, generalized answers to judges’ questions, rather than internalizing the questions, processing their nuances, and offering genuine, original responses that fully addresses the judges’ concerns.
One method to overprepare without over-rehearsing is to catalogue some of the most difficult questions faced in practices, jot them down in a deck of note cards, then mix the deck and practice responding to the questions in random order—no matter where they fall in a planned outline of the issues. This will force advocates to provide original responses to the questions in order to weave their presentation back into the original argument structure. Rather than generating canned responses, the advocate will deepen their neural network around the problem, recognizing the relationships between issues and concepts and learning to tack between them smoothly. That mental pliability is a learned skill, not an innate talent. It takes a great deal of preparation, but it can be mastered by anyone willing to put in the necessary effort. And it cannot be reduced to a scripted series of rehearsed answers.
Advocates often work harder in moot court preparation than they have in almost any other aspect of law school. But concerns about perfection can lead them to work in counter-productive ways. A perfectly-scripted answer is not the goal. Instead, advocates must aim to deepen their understanding of each issue so they can comfortably respond in unique ways to each uniquely nuanced question they face. Overpreparation with that goal in mind, while avoiding over-rehearsing, will lead to an argument performance that will make any nagging moot court coach proud.
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).
Monday, February 1, 2021
Two weeks ago I blogged that we were close to releasing Volume 21, Issue 1, of The Journal of Appellate Practice and Process. I am pleased to announce that the issue is now online. There are so many wonderful articles in the issue, which I plan to blog on over the next few weeks.
Since I have already written much on online oral arguments, I thought that I would start with the two pieces that discuss that topic. The first, "Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture," written by veteran appellate advocate Margaret McGaughey, is a follow-up from her earlier article entitled, "May it Please the Court--Or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument." In both articles, Ms. McGaughey conducts numerous interviews of state and federal appellate judges and provides their perspectives on the topics. Her interviewees include Justice Stephen Breyer, Judge David Barron (my property professor), Judge Sandra Lunch, Judge Bruce Selya, Judge William Kayatta, Judge Lipez, former Chief Justice Daniel Wathen, Chief Justice Andrew Mean, Justice Catherine Connors, and the late Chief Justice Ralph Gants. She also interviewed several attorneys who have given remote arguments.
The article is full of great tips, including some tips at the end of setting up your space for remote argument. But, there are two things that really stuck with me in reading the article. The first is how well we all adapted. The judges and the advocates have done what has needed to be done to adapt to the situation. They have learned how to use the technology and they have changed how questions are asked and arguments delivered. Some have even changed what they wear to "court." We are all truly in this together, and we have persevered. This leads to the second thing that struck me--while many judges are eager to return to the physical courtroom, things will never be the same. This new style of remote arguments will remain in some form. How frequently it will be used in the future remains to be seen.
The second article on remote arguments is by one of our bloggers--Judge Pierre Bergeron. Judge Bergeron's article, "COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual," also contains judges' thoughts about remote argument. What really stands out to me in Judge Bergeron's article, however, is his passionate defense of oral argument in general. He presents a fascinating discussion of the decline of oral argument and how remote arguments can serve to both revitalize oral argument and meet key access to justice concerns. Virtual arguments, he says, could allow courts to create a "pro bono appointment program that would . . . help provide argument at-bats for aspiring appellate lawyers" by matching them with "underprivileged clients who need quality legal representation." He cites to such a program in Arizona. This idea is genius. I could see law school clients jumping on board too.
Hopefully this new year and the vaccine rollout will see some normalcy return to our appellate courts. But, I hope too that we capitalize on all the technological advancements with remote oral argument to increase access to justice and lower costs for clients.
February 1, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)