Bar News - March 23, 2007
Appellate Advocacy: Tips from the Bench
By: Dan Wise
The Supreme Court Forum CLE at the 2007 Midyear Meeting on Feb. 15 included a number of comments from the five justices on what they consider effective advocacy before the court.
Also, Supreme Court Clerk Eileen Fox provided information on case processing by the Court. She pointed out that since the Court changed from a primarily discretionary appeals court to a mostly mandatory acceptance docket, the Court’s workload has shifted but it has not greatly changed the number of oral arguments heard. Instead, more cases are decided by order (without explanation), or is decided on the briefs without oral argument. Although the number of pending cases has increased, she said, the Court believes its backlog is due mostly to the length of time for parties to prepare the record and fully brief their cases, rather than to delays in the Court’s consideration of cases.
Following are a sampling of the justices’ comments regarding advocacy:
On the Briefs
“In the brief, the statement of facts is very important,” said Associate Justice James E. Duggan, who as New Hampshire’s longtime Appellate Defender, may have argued more cases before the court than any other lawyer. “You need to be laying out the facts first before getting into what you want or what you believe.”
He added: “Don’t be afraid to criticize a precedent. Sometimes the court is inconsistent or wrong. Tell us where we need to develop the law.”
Associate Justice Richard Galway and Chief Justice John T. Broderick Jr. encouraged attorneys to think of the brief as a form of story-telling: “You have to have a common thread in your argument—what is the common basis of your argument, your story?”
Broderick advised, “Think of how you could make a two-minute statement about your case that even your non-lawyer neighbor could understand. If you understand your case to the point where you could put it into simple English, you will be more persuasive.”
On the Arguments
Associate Justice Gary Hicks recommended that attorneys, in order to prepare for oral argument, come to an oral argument in person or click on the streaming video of oral arguments that are available through the Court’s Web site at www.courts.state.nh.us and click on Supreme Court Web cast.
Broderick, in a point echoed by several other justices, reminded advocates not to focus on the facts of the case in their oral arguments. “Very few people believe us when we say we are familiar with the facts,” he said.
Hicks and the other justices also stressed that “less can be more” in the realm of oral argument. “This is what some of the more experienced advocates will say, ‘I am going to make two points and take questions.’ Or they will say, ‘I will take questions at any time.’”
“Remember that oral argument is not about you, it is about us,” explained Broderick. “We want to find out answers from your perspective.” One of the most active questioners on the court, the chief justice added, “We do not talk about these cases with each other before your argument. The oral argument is a three-dimensional process for us —we are listening to the lawyers, we are listening to our colleagues, and we are trying to form a final impression of the case.”
Several justices, including Duggan, also made the point that attorneys must be selective in the arguments that they make; and that, under questioning, willingness to concede a weak point can actually add credibility to your case.
“It is a mistake to try to avoid the problem [weak area] in your case,” said Galway. “If you don’t address the problem area in your case [in your argument], you haven’t helped us.”
“Think about what you can give up and still win,” said Associate Justice Linda Dalianis. “How narrow can you become in your view of the key issue of the case. You need to know this so you don’t end up defending positions you don’t need.”
The Supreme Court Forum CLE was recorded and is available for viewing for NHMCLE credit by visiting the NHBA CLE pages at www.nhbar.org.