IN PART ONE of this article (page 8, Nov. 23, 2001 Bar News or on this site under Archives), I noted that the importance of the brief outweighs that of oral argument. This does not mean that oral argument is a meaningless exercise. Indeed, oral argument can be deeply persuasive – if done well.

Justice Ralph Adam Fine of the Wisconsin Court of Appeals stated that, "[a] good appellate argument is a conversation, not an oration." This is a great maxim to keep in mind, but in reality it is difficult to achieve – perhaps because there is no set model to follow that will ensure counsel gives a persuasive and conversational oral argument. However, I offer the following pointers that may assist counsel in preparing for oral argument. These pointers are to be taken in conjunction with the first portion of this article, titled "On the Brief."

Jurisprudence can be broken down into three areas: principle, policy and precedence. The weight given to each area differs among judges and, thus, jurisprudence is an individualized "event." Counsel should spend some time researching the general predilections, philosophy and attitude of each member of the bench. This can only assist counsel in preempting the concerns of each individual judge or noting that a particular judge’s decision in a prior case is consistent with the position advanced by counsel.

In New Hampshire, the first five minutes of oral argument goes uninterrupted by the court. Five minutes is an eternity and it should be used wisely. This time should include: (1) The obligatory introduction; (2) What, at its core, the case is about. Keep this simple, concise, and to the point; (3) A recitation of the facts that are critical to your legal argument. The court, at this point, is familiar with the record; don’t waste your five minutes reciting unnecessary facts; and, (4) Why you are appealing and why you should win. This is critical.

Counsel will find that presenting the above information will take about two minutes. The remaining time should be devoted to delivering a compact and well-orchestrated overview of your entire argument. Thus, at the end of your five minutes, you are ready to engage in a more detailed analysis of the case and why you should prevail.

Oral argument should not be a blitzkrieg through every point made in the brief. There is simply not enough time during oral argument to effectively present every nuance argued in the brief. Counsel should rely on the brief to present the case in full. Oral argument, therefore, should be limited to the critical issue facing the court. There will be the exceptional case in which every issue is critical; however, good appellate advocates – like good trial lawyers – must take calculated risks in deciding what the case truly turns upon. Counsel should objectively assess the strength of each issue and focus oral argument on the one (or two) that are most likely to carry the court. As with brief writing, a thorough understanding of the record in light of the standard of review is critical in making this determination. Obviously, counsel should make sure the court is aware that certain issues will be submitted on the strength of the brief and not argued orally. This ensures that the court does not erroneously consider such issues waived.

This point is most salient when the main issue involves a discretionary finding by the trial court. Such findings generally will not be overturned unless they lack support in the record or are clearly erroneous. Too often, counsel attacks the fact-finding process – arguing the credibility of a particular witness, or relitigating facts that were in dispute – instead of focusing the court’s attention on the standard of review and how the trial court erred.

Counsel should be prepared to field any question regarding the facts or procedural posture of the case. Counsel should be able to provide the court with a citation to the record in support of any argument made to the court. The critical portion of the record pertaining to a particular issue most likely consists of no more than five or six citations. A good idea is to note the part(s) of the record supporting the critical areas of your argument in the margin of your argument outline for reference.

Counsel should be fluent in the facts and holding(s) of each case pertinent to the argument. Along with cites to the record, it is also a good idea to note the case(s) critical to your case in the margin of the argument outline for reference. Counsel often fails to cite favorable cases or distinguish unfavorable ones during argument. Rhetoric is simply no match against a rule of law aptly applied to the facts of your case.

After observing many oral arguments, my conclusion is this: You either have a knack for answering questions from the bench or you don’t. This being said, I offer some basic suggestions. Questions from the bench should be answered immediately. After answering the question, counsel should return to his argument. When done well, counsel’s presentation will be a seamless flow of answers and argument.

One appellate expert offers the following examples of some answers to avoid at all costs:

"I was not counsel at trial."

"I did not brief that issue."

"I will address that question later in my argument." (Usually, counsel forgets to do so).

Counsel should be prepared to answer hypothetical questions. Too often, counsel’s response to such a question is to avoid it or argue that the hypothetical situation "isn’t the case" before the court. If you want to persuade the court to, for example, adopt a new legal standard, counsel should be prepared to apply the standard to other "hypothetical" cases. Remember, the end result of a case before a court of last resort is the creation of common law precedent. Therefore, counsel should consider the "big picture" and be able to explain how the case before the court will be applied in the future. Indeed, that is what the court is asking when it poses a hypothetical.

Counsel should also be prepared to concede lesser points of law and fact. This is a delicate art; however, if done properly, counsel will gain credibility with the court without sacrificing the argument. Refusing to give an inch or maintaining a clearly untenable position will damage your case. Concede the minor points and then immediately point out how such points do not detract from your argument or favor your opponent in the end.

Avoid being overly argumentative and attacking your adversary. It is a waste of time and energy. The control counsel had over the flow of the proceedings at trial does not exist on appeal; thus, do not try to force a conclusion or an argument. In the end, the best oral arguments are those that sound most like a formal conversation with the court.

As the appellate caseload continues to increase, appellate advocates will need to hone their skills in order to be heard on appeal. However, no set of rules or pointers will ever lead to the mastery of effective appellate advocacy. In the end, appellate advocates must dedicate the time and energy necessary to present a case in a manner that maximizes the chances of winning.

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