For any of you who are interested in effective appellate advocacy, Steve at Virginia Appellate News & Analysis (you may have to scroll down a little) has a very thoughtful post on the subject of "Effective Oral Argument." In addition to endorsing everything Steve says, my own two-cents is that the very best (and thus the most potentially effective) oral argument is a discussion between and among legal professionals about the application of one or more fine points of law to a particular factual scenario. Arguments that contain phrases like "I don't think it's fair" or those which make it apparent that the lawyer isn't familiar with all of the cases on point make it very difficult to have any sort of meaningful dialog about whether error was committed by the trial court.
For oral argument to be meaningful, all parties to the discussion (yes, that includes the judges as well) have to be completely conversant with both the facts that provide the context and the applicable and potentially applicable precedents, statutes and rules of procedure. Practice moot court rounds may make the practicioner feel better about his or her level of preparation and if so, it serves a purpose, but anyone who views them as a "dress rehearsal" is making a serious mistake because the judges aren't likely to follow your script.
2 comments:
At the risk of saying "me too," based on 20 years of being an appellate prosecutor, I totally agree with your view. I make my junior staff do practice arguments, not for "rehearsal" purposes, but to ensure that all of the twists and kinks in the case are fully explored. And the justices on the state supreme court before which I practice are often prepared. But note I said "often," not "always." Nothing makes an oral argument like a question from the bench that shows no familiarity with the facts....
As one who works for an appeals court, I can tell you that 95% of the time, the opinion is written and the judhes' minds made up before the case is argued. My two cents (which is probably worth about a cent and a half).
Post a Comment