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September/1/2012

ORAL ARGUMENT: DO’S AND DON’T’S By Cynthia Feathers

ORAL ARGUMENT: DO’S AND DON’T’S
Cynthia Feathers, Esq.
cfeathers@appealsny.com

(From the September 2012 Newsletter)

There’s a memorable scene in the 1995 movie “The American President” in which President Andrew Shepherd chides Senator Bob Rumson, declaring: “We have serious problems to solve, and we need serious people to solve them...This is a time for serious people, Bob, and your fifteen minutes are up.”  I think of that scene sometimes while at oral arguments – a weighty business, involving important legal problems and requiring serious attorneys who make the most of their ten or fifteen minutes to argue their case.  While many attorneys are very professional in how they approach oral argument, it is surprising that not all participants take the opportunity seriously.

 Dedicated attorneys handling important appeals may spend days or weeks preparing for oral argument and may arrange to be moot courted by colleagues.  The process is not just a matter of reviewing the record and briefs, updating the law, and taking a few notes.  It involves gaining a deeper perspective and new insights about the case and crystallizing its central strengths and weaknesses.  The savvy advocate knows that, in a close case, incisive and persuasive arguments may move undecided judges in his or her favor, and that preparing for oral argument also means striking a balance between having conviction about your position and maintaining professional objectivity.

 At oral arguments, professionalism is conveyed by being prepared; making points and answering questions in a mature, forthright manner; and maintaining a respectful, dignified attitude toward the court, counsel, and the law.  Good advocates do not get upset when the appellate panel asks tough questions.  They expect and welcome it.  That dialogue is what the process is all about.  Competent advocates are ready to take full advantage of the precious privilege to have a few final words about the case with judges who will decide their client’s fate. 

 So what is it that some attorneys do that brings to mind a fictional President’s call for serious people to deal with serious problems?  Here are a few examples:

• The Nikita Khrushchev Approach: Some theatrical attorneys act like they are speaking to jurors, not jurists, for example, raising their voices and pounding their fist on the lectern to accentuate every point.   It’s inappropriate and really annoying.  (For younger colleagues: When Khrushchev led the Soviet Union, he once expressed outrage by banging his shoe on a desk at the U.N.)  This approach, as several below, brings to mind Rule 3.3 (f) of the Rules of Professional Conduct, providing that a lawyer must comply with the customs of practice of the tribunal in which he or she appears and not engage in undignified, discourteous, or disruptive conduct.   
• The Absent-Minded Professor Approach: A few unprepared attorneys, rather than bringing to the lectern pithy, strategic notes or a carefully organized argument notebook, instead spread out statutes, treatises, the record, and legal pads with scribbling on dozens of pages.  They constantly flip through the materials while struggling to make points.   It’s distracting and undermines the advocate’s ability to make cogent, focused points in the few minutes available.  
• The Bury Your Head in the Sand Approach: Usually the facts in the record that make you wince are the ones you must squarely confront and mitigate, but some advocates pretend that those damning facts do not exist – up until the moment of truth at oral argument.  This course of action does not work well, and it can run afoul of Rule 3.3 (a) of the Rules of Professional Conduct, prohibiting a lawyer from making a false statement of fact or otherwise misleading the court.  
• The “We’re All Chums” Approach:  In a moot court, one Appellate Practice law student addressed the “court” collectively as “you guys.”  I lowered his score by one letter grade to make the point that such a casual, disrespectful approach is strictly forbidden.   I told him that would never happen in a real court, but then it actually did one time.  Another “chums” approach is taken by the advocates who indulge in a stream-of-consciousness, coffee-klatch-style tone with the judges.  When these lawyers were taught that oral argument was a “conversation,” this is surely not what their mentors meant.
• The Temper Tantrum Approach: Now and then a lawyer will react with emotion, anger, and even churlishness when confronted with a skeptical court.  That skepticism should have been anticipated and met with cool, controlled professionalism and respect. 
• The “I Make My Own Rules” Approach: Some lawyers think the sacred rule of appeals – that an advocate must not rely on or even mention matters outside the record (unless a well-established exception applies) – does not apply to them.  At oral argument, they casually invoke recent conversations or other matters not found in the record to support their position.  Not a good way to win points with the court.   
• The Captain of the Winning Team Approach:  Certain lawyers most often represent the respondent and get used to winning.  While many such attorneys are superb institutional advocates, a few mistake structural advantages for prowess and entitlement and act like sore losers when things do not go their way.   It can trivialize a serious endeavor to think that it all comes down to one advocate’s ego.   Sometimes trusting the process and accepting defeat with grace is the best way to go.
• The Father Knows Best Approach: One of the most creative things an appellate advocate can do is to push the boundaries of the law and convince a court to overrule its own prior precedent.  (Take for example Yonaty v. Mincolla, decided by the Third Department on May 31, finding that statements falsely describing a person as homosexual no longer constitute slander per se.)  However, what does not work is advocates complaining that the court is wrong, declaring that they are right, and urging the court to ignore its precedent – without building a strong foundation for such stance.  The approach can even implicate Rule of Professional Conduct 3.1, which distinguishes between asserting a frivolous position with no basis in the law and advancing a good faith argument for changing the law.

 The serious nature of the entire appellate process, and the need for mature, well-trained attorneys to handle appeals, was captured by an eloquent statement in Merl v. Merl, 128 AD2d 685 (2nd Dept 1987): “The process of deciding cases on appeal involves the joint efforts of counsel and the court.  It is only when each branch of the profession performs its function properly that justice can be administered to the satisfaction of both the litigants and society and a body of decisions developed that will be a credit to the bar, the courts and the state.”






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