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The ins and outs of appellate arguments

chaz-ball

In October, I had the pleasure and honor of arguing before Maryland’s Court of Appeals.  This marked my forth appellate argument, but the first before Maryland’s highest court. The experience was nerve-racking.  I joked with friends that my primary goal was not pass out. But to paraphrase what one of my colleagues once said to me midtrial, once you’re not nervous, you do not need to do it anymore. Nervousness is a natural part of the experience.  Overall, the argument went well.  Here are some of my take-aways.

Be aware of time

The 20 minutes available in the Court of Special Appeals or the 30 minutes in the Court of Appeals manages to both seem like an eternity and go by in a flash. The courts’ system of lights is very helpful as a warning, and allows an attorney to circle back to the most important points, but it is not particularly helpful in pacing throughout. Given that, it is easy to get stuck on a particular issue and spend too much time on a single point. Having an internal game clock is necessary. The feat can usually only be achieved by practice with timing. An advocate should have at least a few practice runs prior to the actual argument to be aware of how long certain arguments take and what needs to be narrowed in order to make sure all of the important points are adequately addressed.

Have multiple game plans

An advocate should be prepared for both a “hot” or “cold” bench. An advocate should have enough to say that he or she is prepared just in case the court does not ask any or many questions. Alternatively, advocates should be prepared to narrow the arguments and narrow what other topics are being discussed if the bench is particular warm. Just like in trial, appellate argument requires the ability to adapt to the environment and what is happening in the moment.

Know the facts

The matter I recently argued is one that has most affected me personally in my career. It is a case in which I represented the client from an initial bail hearing in front of the commissioner, to bail review, to trial, to briefing and arguing before the Court of Special Appeals, to petition for writ of certiorari, before the Court of Appeals argument.  Suffice it to say, I knew the facts of the case. That scenario is not always the case in appeals. An advocate should know that facts of the case up and down in case the court has a question, and should not have to flip through the record to find the answer.

Know the law

Just as an advocate should know the facts up and down, he or she should know the most important cases, including the facts of those cases, up and down. Not every appellate opinion used for one line in a brief has to be memorized, but an advocate should be able to quickly address the most seminal cases related to the argument.

On that same note, one of the pieces of advice that I always give to clients for deposition or trial is: “If you don’t know, say you don’t know; if you don’t remember, say you don’t remember. Don’t lose credibility by guessing.”  Similarly, if asked a question about the law that the attorney is not certain about, it is detrimental to waste time or potentially lose credibility with the court by trying to contort or qualify an answer the attorney does not have. “I did not come across that in my research” or “I did not research that specifically” are acceptable answers that serve to avoid potentially embarrassing follow-up questions. An advocate should trust his or her own research, and if he or she does not know, that is acceptable to note.

Concede when necessary 

An advocate should not waste time or credibility arguing points that are not going to move the proverbial ball or lead to a winning argument. There are times when an advocate has to concede elements. There are times when an advocate has to concede potential arguments.  At times, submitting on the brief as to certain arguments is the best use of the opportunity to speak to the court. Maximizing the time by focusing on the strongest arguments, those with the greatest chance of success, is the best approach.

Listen to questions, don’t just hear them

When the judges are asking questions, listen to them. What is the judge looking for in the question? Where does the judge want you to go? What point to you need to be more clear about? Is the judge fully understanding your argument? Does the judge want you to focus on another area of argumentation? An advocate can get into his or her own head and become so laser-focused on making the argument that he or she wants to make, that the advocate does a disservice by failing to make the argument that the judge wants the hear. The judges are the central people in the room. They make the ultimate decision. Listen to help determine what the judges want to hear.

Be yourself.  You’ll do fine. You won’t pass out.

That’s the most important piece of advice I can give.

Chaz R. Ball is an associate at Schlachman, Belsky, & Weiner, P.A. in Baltimore, where he practices criminal defense and civil litigation of personal injury and civil rights matters.

 

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