Salad, a glass of red wine, and a discussion about how to effectively answer questions in appellate argument.

• Author: Lavine, Douglas S.

I have always had a special place in my heart for Elrod Pennington, Jr. His father and I grew up together, went to college together, attended law school together, worked together as prosecutors, and were nominated to be trial judges the same day. I remember the day young Rod was born, thirty years ago. His father was delirious with joy and that joy never diminished. And how could I ever forget the day my old friend died, a month after watching me swear in his son? A widower, he had willed himself alive, through years of painful cancer treatments, to see that day. But he had made it, beaming during the entire ceremony, and then a month later, his task completed, he let go.

I am a bachelor, but Rod is like the child I never had. I have watched with interest as his legal career has unfolded. He has his father's smarts, charm, way with words, keen analytical sense, and a certain not-so-subtle arrogance. Like his father, Rod always thinks he is the smartest person in the room. But then, he often is. He landed a job as a prosecutor in the same office his father and I worked in so many years ago. His dad would have been so proud! Rod quickly rose through the ranks there and was recently asked to join the appellate section.

As I wait for him to join me at our regular Thursday-night dinner, I am looking forward to hearing about his first excursion into oral advocacy because I made a silent promise to myself--and to his father--that I would watch over Rod as he made his way in his career. I have done that, and sharing a profession has kept Rod and me close. He always calls me "Judge, " half in jest, given the warmth of our relationship, but he is not afraid to disagree with me. He can take as well as he can give and I treasure our spirited conversations. Besides that, he has an unusual way....

Oops, here he comes now. I'll pick this up later if I have the time.

--Rod! Over here! Sit down. How about a glass of wine? Beautiful night to eat outside on the patio. Dinner's on me.

--No, Judge. You promised last time that this one was mine! But I have to leave in about an hour to pick up a friend at the airport. Sorry.

--Fine. Listen, you can pay next time. Besides, I don't remember any promise. [Waiter, can we have some menus, please?] You look like the cat who swallowed the canary. What's going on?

--You know I had my first argument in the appeals court this morning. Hard case, but I think I knocked it out of the park.., if I do say so myself.

--Your modesty is ... striking. But give me the details.

--Well, you remember that this defendant's a bad guy: convicted of robbery in the first degree. But Charlie Neal took the appeal, and Charlie's one effective appellate lawyer. He's arguing that the case should be reversed for prosecutorial misconduct because the prosecutor made some arguments that were way too aggressive when he was summing up at trial. Charlie's take is that the prosecutor injected his personal opinions into the case and suggested the guy should be punished just because he decided to go to trial.

--How did the argument go?

--Really well. I think. I mean, I'm new at this, but I managed to dodge every question the judges threw at me about the negative impact of the prosecutor's comments. Sure, the prosecutor went too far, but I didn't concede anything ... even though the judges pushed pretty hard.

--So you bobbed a little, weaved a little, and emerged unscathed?

--Right! That's just how I see it, Judge. Not even a nick.

--Hmm. And you think you satisfied the judges' concerns about the case?

--Maybe not entirely, but I sure didn't concede anything. And I hammered the theme that it was a violent robbery and a strong case and the prosecutor's remarks couldn't have done any harm, anyway.

--Who was the prosecutor?

--Clarence Coleman.

--He's had some convictions reversed for prosecutorial misconduct, hasn't he?

--Yeah, but I'm betting this one will squeak by.

--Rod, don't take this personally, but I think you're being too confident. I think you have a fundamental misunderstanding about the role of oral argument in an appellate court. And about what your goal should be. The goal isn't to dodge the tough questions; the goal is to answer them in a way that advances your cause.

--My goal is to win the case any way I can. Simple. Vince Lombardi's my guide: "Winning isn't everything, it's the only thing." Concessions make you look weak.

--[Waiter, we'll each have a glass of the Merlot, please.] Rod, of course your objective is to win. But the question is how do you maximize your chance of prevailing? By ignoring the judges' concerns? By dodging them? Or addressing them? By making believe, ostrich-style, that your case's weaknesses aren't there? Or by confronting them and minimizing the harm they do to you?

--Depends. If addressing a judge's concerns simply highlights my case's weaknesses, why should I do it? Why bring attention to my case's soft underbelly? It's all there in the briefs, so why harp on it at oral argument? With all due respect, Judge, you're talking like someone who hasn't actually argued a case in years.

--Two decades, actually, Rod. But let me make sure I understand your view. You think the purpose of your argument is to paper over your weaknesses.

--Absolutely. The more papering over, the better. Let the other side talk about my weaknesses. I want to distract the judges from my weaknesses by stressing my strengths.

--Then you figure that your audience--a group of appeals court judges--won't spot the weaknesses in your argument?

--Not if I can help it.

--You obviously don't have a very high opinion of the legal acumen of some of us on the bench, Rod.

--I'll take the Fifth on that one, Judge. I think it's time to order. [Waiter! Could we have those menus, please?]

--Have you ever bought a car?

--What? Bought a car?

--Have you ever bought a car?

--Well sure I have. And I know you remember my first car. Man, I loved that Jeep. But what does that have to do with appellate advocacy?

--What sorts of questions do you ask a car salesman?

--Well, I ask the standard sorts of things. You know: How's the mileage? How's it handle in the snow and ice? What kind of warranty can I get? ... And of course I always ask about cost.

--And when you ask the salesman a question, what do you expect?

--What do you mean?

--I asked you, "And when you ask the salesman a question, what do you expect?"

--An answer. I know it'll be part baloney because he works on commission and wants me to buy the car, but I do expect an answer.

--Right. And how do you feel if you get the run-around instead of an answer? You ask what kind of mileage the car gets on the highway and the salesman tells you that "it does very well on the highway compared to other similar models." Is that helpful?

--You mean if I don't get any hard numbers, just fluff?. That annoys me. Yeah, of course it does.

--Does that make you more likely to buy the car?

--Oh, I get it! When I get up to argue I'm like the car salesman--used car salesman, I suppose. Lawyers are like used car salesmen!

--No, but stick with me. When a judge asks you a question from the bench, he or she is in the same mindset you are in when you're thinking of...