Bar News - March 18, 2011
Justice Conboy to Lawyers: Be Thoroughly Prepared
By: Beverly Rorick
New Hampshire Supreme Court Associate Justice Carol Ann Conboy, appointed to the NH Supreme Court in 2009 after 17 years on the superior court bench, was recently asked by Bar News to provide some other-side-of-the-bench insights for lawyers practicing before the state’s high court.
Supreme Court Clerk Eileen Fox, Justice James Duggan and Justice Carol Ann Conboy at a March 4 CLE seminar on Appellate Advocacy.
"First of all," she said, "lawyers should understand that the key to successful appeals is thorough preparation, and that begins at trial. Be sensitive to the issues that are likely to lead to appeal, and be prepared to ‘protect the record.’ By that I mean that you should fully outline to the trial court your position on critical issues, making clear the basis of any objections. If the trial court denies your request to introduce certain evidence, you should request to make an offer of proof."
"This is critical to the Supreme Court’s ultimate review," she continued. "If your objections were overruled, we need to know the precise basis of the objections; if you were prevented from introducing certain evidence, we need to know what the evidence would have been."
Conboy said she appreciated the fact that in the heat of trial – and the inevitable urging of the trial court to "move things along" – that it takes a certain amount of courage to press for the opportunity to put your position on record. "But have that courage," she said.
As to the notice of appeal, Conboy recommended careful selection of the issues sought to be reviewed. "Listing 27 issues suggests a lack of discernment, and a lack of confidence in your position. It is rare for there to be more than a handful of genuine legal issues in any case."
Concise Brief Writing
Justice Conboy pointed out that brief writing is not creative writing. "Building suspense to a surprise ending is not helpful. Your brief should concisely describe the case and the issues up front, it should be organized in a readily understandable manner, and it should contain a clear request for relief. Tell us what you’d like us to do."
Accuracy is critical, said Conboy. She added that a mischaracterization of the proceedings in the lower court or of applicable case law would call an attorney’s credibility into question. "Don’t ignore unfortunate facts or contrary case law," she said. "Don’t be afraid to address negatives in your case – the other side surely will. We will appreciate not only your forthrightness, but also your commitment to your cause. Isn’t that what advocacy is all about?"
She also noted that reply briefs are usually not necessary, and too often simply repeat arguments made in the opening brief. "Save reply briefs for necessary factual correction or response to truly unanticipated arguments of the other side," she said.
Conboy also cautioned against waiving oral argument. "The Court finds argument very helpful. The exchanges between the justices and the lawyers, and sometimes between the justices, not only illuminate the nuances of the issues in dispute, but they can be critical to the outcome of the case."
Useful Tips for Oral Argument
Conboy offered the following suggestions regarding oral argument:
Justice Conboy also observed that few attorneys use demonstrative aids. "They can be very helpful in some cases," she said. "For example, in a boundary line dispute, a large schematic showing, in broad outline, the location of the subject properties and the conflicting asserted boundaries could assist the lawyer in quickly orienting the justices and clarifying the issues.
- Prior to your first oral argument, visit the court and watch experienced appellate lawyers, who can’t argue concisely and respond to the fast-paced questioning by the justices.
- Also, just before your argument, review your brief, your opponent’s brief, and key parts of the record. Argue from an outline and not verbatim from a written speech. Your mastery of the facts and the issues will enable you to interact knowledgeably with the justices.
- Don’t begin your argument with a recitation of the facts. The justices have read the briefs and critical parts of the record as well. Use your limited time to home in on the issues. It is useful to begin by briefly outlining your two or three major arguments. Within minutes, the questioning will start.
- Answer questions directly and forthrightly, even if you have to acknowledge some negative aspect of your case. Try to then springboard off your answer to further your argument. "I’m going to get to that later," is not a helpful answer. Be flexible and ready to move around your outline.
- Reserving some of your time to respond to your opponent’s argument is rarely productive. You know what your opponent will be arguing. Don’t break up your time for the sake of getting in the last word.
"Of course, demonstrative aids should not be overused and should not become an impediment to the argument," she commented.
NOTE: Justice Conboy was among the faculty discussing appellate advocacy at a March 4 NHBA CLE program. The seminar will be available online. View the online catalog.