Legal Basics Series, 13 SCBJ, SC Lawyer, July 2013, #5

• Author: Robert E. Stepp

Legal Basics Series

Vol. 25 No. 1 Pg. 32

South Carolina Bar Journal

July, 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0“Don’t Raise Your Voice. Improve Your Argument.”^[1] Preparing for and Delivering an Excellent Oral Argument

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Robert E. Stepp

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0There is a loud knock on the door. The Court enters. Counsel and gallery are seated. The Chief Justice announces that the next case for oral argument is yours. This is your chance to speak directly with the judges who will decide your client’s case—to answer their questions, gain their confidence, allay their concerns and convince them that your position is correct. This is one of the most exciting moments in the life of an appellate advocate, and if you are properly prepared to present your case, the next 10 or 15 minutes can be enormously enjoyable and satisfying. If you are not ready, however, the experience can be agonizing and seemingly interminable. Here are some tips to help you prepare and deliver an excellent appellate argument.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Preparation, Preparation, Preparation

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0“If you give me six hours to chop down a tree, I will spend the first four sharpening the axe.” —Abraham Lincoln

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Preparation for the argument is obviously critical. But how should you prepare? What should you do? When should you do it? Here are some steps you should take in the order in which you should take them.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Renew your knowledge of the case.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0It may have been some time since the appellate briefs were filed, and many other issues will have demanded your attention in the meanwhile. As soon as you know when the case will be argued, re-read all of the briefs, especially your opponent’s. Do this as early as possible. Make sure that you get all of the issues back in your mind and look at the case as a whole. Then review the record on appeal with those issues in mind. Try to see the case as the court sees it based only on the written briefs and record.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Review the case law and other authorities cited by both sides.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Make sure that you understand the procedural and factual context of each case. Prepare a short summary of the facts, procedural posture and the holdings of the most important cases. Determine how you will distinguish or argue against the principal cases relied on by your opponent. Understand how your opponent will attack or distinguish your principal cases.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Reconstruct the issues on appeal.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Analyze the issues to make sure you understand them. Appellate courts often ask counsel to define the issue that the court is being asked to decide. You should always be prepared to respond precisely to such an inquiry. You should be able to state and discuss the issues in plain language that is not overly formal. Make sure that you understand the difference between the way that you presented the issues in your brief as opposed to the way that the other side presented the issues. Is the way the issues are stated likely to affect the court’s view of the case? If so, you should be prepared to defend your own version of the issues before the court and explain why the other...