Posted by Eugene Volokh:
Oral Argument -- Common Mistakes:
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248474486
Throughout this week, I've been blogging excerpts from Mayer Brown's
[1]Federal Appellate Practice treatise, and I close with the section
on common mistakes at oral argument:
The most common mistakes of technique made by appellate oral
advocates are born of lack of preparation, lack of attentiveness to
the court, and nervousness.
First of all, although the point is obvious, it is safest to
address judges as �your Honor,� unless you are entirely confident
that you have the judge�s name right. Trying to connect personally
is a good idea, but only if you are absolutely sure that you will
not mix up the judges. Even in courts that have nameplates in front
of the judges� bench, mistakes can happen. Although not every judge
who is called by the wrong name will take umbrage, counsel is
likely to realize the blunder, perhaps when one of the members of
the panel corrects the misnomer -- and that realization is bound to
cause counsel to become distracted, flustered, or embarrassed. If
the client is present, this kind of mistake also undermines the
client�s confidence in the advocate.
Small physical manifestations of nervousness can appear
unprofessional and distract the court from counsel�s argument.
Unnecessary gestures, shuffling of papers, and fidgeting at the
lectern should be kept to a minimum. Hands should be kept at
counsel�s side or on the lectern. This will help create an
appearance of earnestness and attentiveness. Crossing one�s arms or
cocking one�s body to the side, by contrast, risks conveying a
sense of combativeness. Rehearsals with video will help counsel to
avoid these mistakes.
Counsel should tab reference material so as to avoid long delays
while looking for page references. It is acceptable to pause for a
sip of water, if you experience dry mouth, but do so carefully,
lest the sip produce coughing, sputtering, or spraying. There is a
technique that some experienced oral advocates use to prevent dry
mouth and to avoid (or minimize) the need to quaff water -- which
can have its own complications. Instead of depending on water, use
hard candy (like Lifesavers) that stimulate moistness in the mouth.
It is possible to pop a hard candy into your mouth discreetly while
waiting to be called to counsel table and even while sitting there.
Be sure, however, to swallow the candy before being called to the
lectern.
Poor oratorical form is another common blunder, one that takes many
shapes. Some speakers, desperate to make a point, resort to
hyperbole, invective, or overstatement of fact or law -- all of
which may result in a loss of credibility with the judges. Others
read brilliant passages from their brief, but never engage the
judges� recurring -- and outcome-determinative -- questions. The
late Chief Justice Rehnquist famously noted four �species� of poor
advocates: the �lector,� who reads the argument; the �debating
champion,� who knows the case and its theory very well but does not
listen carefully to questions and carefully answer them; �Casey
Jones,� who knows the case but races ahead, not bothering to �pick
up passengers along the way�; and the �spellbinder,� who
substitutes rhetoric for careful analysis.
([2]Show more.)
Finally, too many lawyers lose sight of their role as advocates before
appellate judges. The forum is an appellate court, not a trial court.
Arguments should not be pitched as if the judges were jurors: eschew
emotional rhetoric in favor of intellectual debate. Judges are
especially likely to take offense, or tune out, if they feel you are
giving what is in essence a jury argument.
One important point of which many advocates lose sight is that the
judges will have spent far less time than you studying your case.
Accordingly, you should not assume that they are versed in every
subtle nuance and factual wrinkle. You should listen to their comments
carefully with an ear to whether they have lost track of what you are
saying, which can occur when you assume familiarity with factual or
legal details that the judges may not in fact possess.
Along similar lines, keep in mind that appellate judges are ordinarily
generalists who may lack detailed knowledge of specialized areas of
the law. This is a particular risk for counsel who practice regularly
in a highly specialized area such as tax, securities, or ERISA, to
name just a few. Take care to avoid jargon or the use of technical
terms or acronyms that may be everyday fare for specialists in the
area but a mystery to those not steeped in them. A related pitfall
involves technically complex subjects such as computer technology and
scientific or engineering details that may underlie the testimony of
expert witnesses. Your presentation should be attuned to the panel�s
level of comprehension, and you should supply any necessary exposition
if the judges do not appear to be following the point. If the subject
matter of the case involves any of these risks, remain sensitive to
the danger of losing your audience.
Finally, counsel should remember to display the proper respect for the
court, the trial judge, and opposing counsel. Judges especially
dislike ad hominem attacks directed against the trial judge or
opposing counsel. You may think that the trial judge is a hopeless
bumbler or was far from impartial, or at least behaved that way in
ruling against your client. But the members of the panel may have
lunch with that judicial colleague every day, or belong to the same
golf club. Insulting a friend provokes a defensive reaction, which is
the last thing you want to do.
A similar caveat applies to the temptation to attack opposing counsel
by accusing your opponent of �misleading the court� or
�misrepresenting the record.� Judges do not like incivility. They do
not like to see lawsuits turn into a personal battle between the
lawyers instead of a controversy between their clients. And they do
not want to be forced to choose sides by deciding which lawyer is
being more candid and forthcoming in advocating the client�s cause.
Stay on the high road, no matter how tempting it may be to strike a
hard blow.
While the debate with the bench may be vigorous, it should always be
respectful, as an alienated judge will almost certainly not be open to
persuasion regarding the correctness of your position.
([3]Hide much of the above.)
References
1.
http://storefront.bnabooks.com/epages/bnastore.sf/en_US/?ObjectPath=/Shops/bnastore/Products/1669
2. file://localhost/var/www/powerblogs/volokh/posts/1248474486.html
3. file://localhost/var/www/powerblogs/volokh/posts/1248474486.html
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