Ethics

Oral Argument in Appellate Court Requires Preparation.

, The Legal Intelligencer

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Sam Stretton
Samuel C. Stretton

Beware of using rebuttal time. The Pennsylvania Supreme Court does not allow any rebuttal time. But the Commonwealth and Superior courts do. These courts have limited the time for argument. Lawyers would do better not asking for a rebuttal and instead focusing on concisely stating their argument initially. But if the lawyer needs the crutch of rebuttal time, then only take a minute or so to respond to something that is patently false.

Never read before the appellate court. Lawyers who read their arguments in part are really doing themselves and their clients a disservice. If a lawyer is nervous, he or she should spend the time before and memorize the argument, then look at the judges and talk directly.

Never use charts in an appellate argument. Appellate judges don't like charts and many courts, such as the Commonwealth Court, frown on a lawyer using a chart. Even in this visual age, there is still a need for eloquence in arguments and not for show and tell.

Never have your client sit at counsel table during an appellate argument unless the case is in the original jurisdiction of the appellate court. The state Supreme Court has flatly prohibited that and presumably the other courts feel the same.

In an appellate argument, lawyers must remember they are not arguing to a jury. Although everyone enjoys a passionate argument, the argument has to be focused on the law. General arguments, no matter how passionate and eloquent, are a waste of time in the appellate court.

Lawyers should use their time wisely. Anecdotes and digressions should be watched very carefully. Time goes very fast and if a lawyer starts to digress or talk about personal issues, he or she loses the opportunity to present an argument.

In arguing, stand at the podium. Don't look at notes. Look the judges in the eye and try to encourage questions. Enjoy the give and take and challenge of questions.

Make the argument interesting. Don't just go up and recite case law and arguments in a monotone voice. Make the argument interesting to the judges.

Finally, understand the scope of review. It does a lawyer no good to argue tremendous facts when the scope of review is different. Understand what the court can consider and review and focus the argument.

The art of appellate argument still exists. Every lawyer who has an argument ought to watch others. Even seeing bad arguments can be a way of learning. Watching an argument, one can clearly see from the audience the mistakes a lawyer is making or the failures of a presentation. All lawyers should identify themselves when they come to the podium to argue—by name and whom they represent. It is a terrible discourtesy not to, even if a lawyer believes the judges know the lawyer.

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