Monday, February 25, 2013

Appellate judge offers tips on oral and written advocacy

In this column from the National Law Journal, Connecticut Appellate Court Judge Douglas Lavine says that good advocates always sweat the small stuff whether in brief writing or preparing for oral argument.  The devil is in the details and those details make or break your credibility with the tribunal.  While many of these "tips" are self-evident, they are still worth repeating and forwarding to your students if only to make the point that real judges really do care about the "basics."

In advocacy, pay attention to the little things

Both during oral arguments and in written briefs, a host of small problems can build to a major distraction.

. . . . [M]y book title for advocates would be something like this: Do Sweat the Small Stuff — And That Means Everything. The premise of the book would be that little things can cause large problems, as a microbe can cause a disease. I try to be a person who takes the big view of things, but in this column I will concern myself with trifles — the smaller and more obvious the better. I dedicate this column to a catalog of seemingly minuscule things that can have large consequences in written, and oral, advocacy.

In real estate, it is location, location, location. In advocacy, it is credibility, credibility, credibility. That is my mantra. Anything that heightens credibility helps you persuade; anything that diminishes credibility helps you lose. Some of the things I will be discussing are problems not only because they are problems by themselves, but because they — drip, drip, drip — puncture your credibility. They are a problem because they cause the decision-maker — often a judge — to avert his or her attention from what you are arguing and focus his or her gaze on how you are saying it. Or how inartfully you are saying it.


I will start with a few of the small things that create problems for oral advocates.


Yes, I have seen lawyers who remain seated when court is opened and the judge takes the bench. Call me old-fashioned: Unless the lawyer is suffering from a physical limitation, the failure to stand is either simple rudeness or indicates a complete lack of knowledge of, and regard for, professional norms.


Believe it or not, more than a few times, I have observed lawyers stand up when their case is called and just start talking. They assume that because their case is next on the docket, the judges will know who they are and whom they represent. This assumption is dubious. A baseball game doesn't officially start until an umpire yells "Play ball." An argument doesn't officially start until counsel — or a self-represented party — stands up, states his or her name, and is told to proceed. An unadorned statement like this is usually sufficient: "Good morning, your honor. My name is Thomas Seaver, and I represent the appellant, Cleon Jones, in this case." Failure to observe this simple professional norm is quite noticeable and starts the case off on the wrong foot. Of course, this does not apply in the case of an ongoing trial or proceeding.


It is an unfortunate reality that sometimes judges interrupt counsel or act in rude and heavy-handed ways. The natural human response is to interrupt, to assert oneself, to show that you won't be pushed around. Judges, however, often frown on the natural human response. Courtroom behavior is highly stylized. A vigorous exchange may be OK, but one of the immutable rules of the courtroom is that lawyers do not interrupt, or speak over, judges. Don't do it.

It is also an unfortunate reality that some lawyers talk over their adversary, interrupt and are generally verbally aggressive. Nonetheless, fighting fire with fire is not the way to go. Speaking at the same time as your adversary is frowned upon. It can be very hard to hold your tongue if you believe opposing counsel is misstating facts or making an unfair argument, but hold your tongue you must. You will have your chance to speak when the other side is done.


One of the most disenheartening things I have ever seen in a court happened in Hartford, Conn., some years ago. I was presiding over what we in Connecticut call a special proceedings calendar. A young lawyer came in and asked for a prejudgment remedy. I leafed through the court file and saw that the defendant had been defaulted. I could have searched for the affidavit of debt in the file, but instead, to keep the ball rolling, I looked up and asked the lawyer what amount she was seeking. She replied: "I don't know." I looked out and saw a veteran lawyer, standing in the back of the court, just shake his head in disbelief. I understand that cases can be handed to you at the last minute, but you must always be prepared to tell the court what you want it to do.


There are many different styles on display in courtrooms. There is a level of informality, however, that is not acceptable. As mentioned in a previous column, one lawyer referred to the panel I was sitting on as "you guys" in an argument not too long ago. Dudes — don't do this! It is thoroughly unprofessional and off-putting and even uncool. Likewise, try to avoid frequent references to acronyms which you may have digested, but which may cause confusion or annoyance to the decision-makers to whom you are arguing. You can never go wrong if you use standard American English, speak slowly and loudly enough to be heard, and sit down when you have made your point.

. . . .

Continue reading here for Judge Lavine's checklist of mistakes to avoid in brief writing.


| Permalink


Post a comment