Thursday, January 6, 2011

Oral argument advice from OCBA Appellate Law Section members

1.  Snell & Wilmer partner M.C. Sungaila published a terrific article in the Jan 4. Daily Journal on appellate oral argument.  Among her many thoughtful tips:

  • "Run an Oral Argument Update"
  • "Re-read all the briefs, key portions of the record and the law"
  • "Prepare for the two primary components of argument: questions from the court and your prepared statement. In that order."
  • "Understand the larger context of your case."
My favorite of her tips?  "Simplify and Synthesize."  Break down your issues into their simplest components, and in doing so, figure out their essential elements.  Then present those elements in a concise and compelling way.  That way, you avoid the oral argument paradox:  how to avoid repeated your brief (a no-no) without raising an entirely new issue (a worse no-no).  As M.C. says, it helps if you can get "out of your head and into the heart of the matter."

2.  Donna Bader, a certified appellate specialist who runs the helpful blog, "An Appeal to Reason," recently posted some solid recommendations on handling a "hot bench" at oral argument.  Her good advice includes:
  • Always answer the question put to you by the justices.  NOW! 
  • Concede the obvious
  • If you are going to talk about new cases or statutes, be sure to advise the other side. 
  • Don’t start off telling the court about the facts of the case. 
  • Know your record! 
Donna may include these tips in her forthcoming book, which she is writing for trial lawyers without a deep appellate background.