Best Of The Portia Project II: Brief Writing And Oral Argument Tips

Judge
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Show Notes

Welcome to our highly anticipated annual compilation episode! Today, we’re thrilled to bring you insights from several esteemed 2024 judicial guests, each sharing their top tips for mastering two critical skills: effective brief writing and compelling oral argument. From structuring arguments with clarity to answering tough questions with confidence, Justices Rita Gruber, Cindy Thyer, Anna Manasco, Lucy Koh, and retired Justices Judith Haller and Patricia Benke offer invaluable advice to strengthen your advocacy. Tune in, take notes, and get inspired to elevate your legal writing and oral presentations to new heights in your practice.

 
 
 

Transcript

Welcome to the show, where we chronicle women's journeys to the bench, bar, and beyond, and seek to inspire the next generation of women lawyers and women law students. We have once again come to the popular annual compilation episode of judicial tips on brief writing and oral argument for most of our episodes covering these topics this year. I hope you will enjoy them and incorporate them into your practice and have a lovely holiday.

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Judge Rita Gruber from the Arkansas Court of Appeals.

Judge Rita Gruber

If you've never done a brief before to an appellate judge, don't try to wing it. Try to get an example. Go to a trusted member of the bar that does appellate work and ask them if they would be willing to share one of their briefs so that you can see what it looks like, what you're supposed to do, are there some nuances that you need to know. Again, be prepared. I think the same thing is true with the trial court. I can remember well-known and generally very well-respected attorneys coming into my court, and the first words out of their mouths would be.

I've never done juvenile before, and I haven't read the statute or the rules, but I'm here. I'm going to advocate for my client. My thought was, you don't go into court that way. You don't go in unprepared. If you don't know what the juvenile code says, then you should get the book out and read the juvenile code, or at least the parts that apply to the type of case that you're handling. You don't go in and announce that you don't know anything about it, and you're just going to win.

You don't go into court unprepared.

No, that's just tremendous.

I mean, flying by the seat of your pants just doesn't work anymore. I mean, maybe in the old days you could do it that way, but it just doesn't work that way. You should be prepared. If anything, you should be over-prepared. What I found when I was still practicing law, and I practiced law for about 10 years before I got appointed as county judge, and I've been out of private practice since then, but what I found was you be as prepared. Pretend like this is your case, you wouldn't go in unprepared on your own personal case. You shouldn't go in unprepared in any case if you're going to get paid, and if you're representing someone, you should be prepared. It's better to be over-prepared than under-prepared.

Yes, it's so true. That way you're ready for things. I think about that in a pallet argument, preparing, preparing, preparing, it makes you more comfortable presenting the argument and there are less unexpected questions. If there are any, you have more bandwidth to handle them because you've prepared everything else.

That's right.

In your court, does the panel confer prior to argument or is it only after argument about discussing the cases and decisions? I know it varies by court.

In our court, we get a fair number of oral arguments, but certainly not in every single case. What we typically do is we have what I think is a very collegial court. We talk to each other. Our law clerks talk to each other. It is not uncommon before we come. Once a case is submitted to a three-judge panel, which is how we initiate all cases, almost all cases are with the three-judge panel. It is not uncommon at all for the judges to perhaps email each other about a particular issue involving a case that is assigned to them. It is extremely common for law clerks to communicate with each other.

Again, I think that our court really wants to have a good work product. We don't see having a good work product as necessarily butting our heads all the time, but we see it as trying to collaborate, to try to, I want to know if in fact, if one of the other judges or the other two judges on my panel have a different take on a case. I would like to know that because they may be right and maybe my approach is wrong or it may help me to be better prepared to meet their point of view, and their argument on how the case should be decided. I'll be better prepared to say, “No, this is the reason why I feel like we would be better off handling it in a different fashion.”

I just really feel like that's what's been the currency that makes our court special and makes it a collegial court because we're not trying to do a gotcha thing. We're trying to get a good work product. We want the right decision to the best of our ability. I mean, obviously, sometimes our cases, the litigants will ask for review by the Supreme Court and the Supreme Court may not agree with us. The thing about it is we've given it our best shot. It's not that we’re in total disagreement about how a case should be approached. I mean, do we always agree? No, that's when we go to either a 6 or 9-judge panel but we are trying to the best of our ability to get the best work product possible.

On brief writing.

I would just say, get to the point. I mean, what are your points on appeal? I mean, I cannot tell you the number of times we have gotten briefs where I'll look at, these are the points on appeal and then you get into the actual brief and they're not addressing those points on appeal. If you've got a point on appeal, address the point on appeal, don't address something else.

Exactly, yep. That's a good tip I think all around for writing but particularly about brief writing because that's a long brief you have to read and you're like, wait, wait, I thought this was the point where when are you going to get to that point? I thought that's what I'm looking for.

Literally, I have had to go back and say, “Now, what is the point on here?” I mean, and sometimes the point that under our rules, you have to set forth the points separately in the brief and then you get into the body of the brief and you, and they don't match. I'm like, “What?” I mean, and proofreading. Again, I'm not even talking about pro se brief. I'm talking about lawyer briefs. There needs to be some serious editing going on. People going back and proofreading and making sure that, and again, we don't expect perfection at all. You should have some pride in authorship.

Brief Writing And Oral Argument: We don't expect perfection at all, but you should have some pride and authorship.

Judge Cindy Thyer

Judge Cindy Thyer from the Arkansas Court of Appeals on brief writing.

Now, I would say that what I am not sure that lawyers practicing before the Court of Appeals understand is the volume, the sheer volume of cases that were presented with. For example, this term, meaning this fall term, I think we're pushing close to 400 cases and there are 12 of us. It's a seven-day-a-week job it has been. The volume has been, like I said, very large and it's challenging to balance that time and also give the time that you think each case deserves. As a lawyer with that knowledge, what I think that really emphasizes to me is the importance of making the briefs and the arguments really emphasize the most important points.

I know that there are exceptions to this, but I think sometimes the inclination is to feel like in your brief, you need to give every one of your points equal time, or in your argument, give those points equal time. I think really emphasizing the most important things and making that simple, concise brief that's easy to read, that enables us, I think, to get into the case easier. That would be the advice that I would give is just to make those briefs strong, but really point out what you think your strongest argument is and not spend as much time worrying about some of those arguments that really aren't going to carry the case one way or the other.

Brief Writing And Oral Argument: Emphasize your strongest argument, and don't waste time on those that won't significantly impact the case.

On oral argument.

What happens here is that lawyers do have the opportunity to write the court and ask for an argument. Administratively, there is a screening process with our chief judge and attorney. Their primary goal is to try to identify those cases that might result in a change in the law or there's a particular legal issue that needs further development. If after writing that letter, attorneys are not granted oral argument, they can still file emotions with the court. The court as a whole will consider that motion and motions conference. There is that extra layer where that can be brought in. It's very interesting to me. In fact, going to the AJEI Summit in Washington DC was a lot of fun for me hearing how other states.

It's different. That’s why I ask.

A lot of states have a lot more oral arguments than what we do. I've only had a few and I enjoy it. It's awkward for me to share a bench with two others because you don't have that benefit of eye contact and you're trying to figure out who's going first, and how are you going to work out these questions. From that standpoint, I feel like I'm still working through that, but the argument itself is beneficial and I enjoy it, but I'm looking forward to many more of those going forward.

It is interesting how each court is different in how they decide even in the same geographic area between state and Federal courts. In my region, the intermediate courts of appeal, if one party wants an argument, they get an argument. That's completely different from our Ninth Circuit where the majority of the panel decides whether they want to have an argument in your case and then they let you know but you don't get to decide.

It's the panel that decides whether they think the argument would be helpful or not. Depending on which courthouse you're in in the same state, it can be a different experience. You said you hadn't participated in that many compared to the number of briefs you've read by this point, but what about oral argument? Do you have any suggestions for advocates of things that you find helpful for them to do at argument?

At this point, hopefully, they have tendered to us a very well-written brief along those lines that we discussed. From what I've been able to see, there are times when there's a desire to go back and follow through with what the brief has said. That's probably not the most helpful approach. To me, the most helpful is to be able to recognize what you think the weakest part of your case is or what you think the other side is going to be pointing at to try to steer things their way and don't hide that issue whatever it is.

Don't ignore it, but come out with it and acknowledge it. Once you do explain, “This is the issue and this is why we believe that the law is on our side,” because at that point, we know what the arguments are. “Tell us what it is you think we're concerned about and address it. Give us specifics on what you want us to do if we do rule in your favor. What disposition are you looking for?”

Justice Judith Haller, retired from the California Court of Appeal.

Justice Judith Haller (Retired)

When I was a trial attorney, I thought, “You do everything from your oral skills.” I was assigned a law in motion and I realized, No. It's the paperwork that is critical.” Then on the appellate court, I am a big advocate of good introductions. What is this case about? If I open up a civil brief that says MC versus Haller. I have no idea. Are we talking about personal injury? Are we talking about regulatory and an environmental impact report?

I need you to get me into what this case is about right away. What is the issue and this is why we should prevail? Being accurate both in the record and in the legal arguments is critical. Getting to the point is critical. Talking about practical implications, if that is what is part of it. Clear writing is key to oral argument.

Answering the question is key and knowing your case well enough that you are not afraid to answer the tough questions that you as an appellate attorney know are coming. You know well also that oftentimes the bench is talking to itself with one justice who might have a different view talking to the other two justices.

Brief Writing And Oral Argument: Clear writing is essential in oral arguments. Answering the questions is crucial. Know your case well enough that you're not afraid to tackle the tough questions you, as an appellate attorney, know are coming.

Asking a question like, “That's directed.” You can see that sometimes. You are like, “I see. Somebody else needs to be persuaded or somebody else has a question along these lines. That's why we're talking about this.” That's the art of advocacy from the advocate's perspective is recognizing what's going on when that's happening.

It amazes me where some attorneys either in their writing or oral argument will think we're going to ignore something in the record as if we're not going to find it. You have to have trust that we are doing what we're supposed to be doing and that we are going through the record. There are things there that you have to answer and you can't ignore it because we're going to find it. Also, some attorneys were so confrontational thinking that was going to be a good way to be persuasive and it isn't, as you will know. Your job is to listen, understand, and answer the questions. In my view, if that helps the court, get it right or at least, as right as we think it should be.

Judge Anna Monasco from the United States District Court.

Judge Anna Manasco

I think in general, if your brief or motion has a fact section or some front matter about the legal standard or whatever it is, you should write that first. Ideally, you ought to be able to write that in a way that will compel the result that you're asking for. If you cannot narrate the facts in a way that make it seem whatever, fair or right or important, that your ask is one that will be granted by the court, then you got some decisions to make about what you're going to tell your client, what of the crummy arguments that might be available you're going to make and how you're going to put them in order.

Every lawyer has that, a case where they're dealt bad facts or a case where the law is an uphill battle. If you start with the story of the case, you ought to be able to build it in a way that will facilitate the outcome you're seeking. If you cannot, then the moment to start dealing with that problem is before you have made all the rest of the decisions.

That is a good point. It has to factor into the client's decision-making too, or at least they should be considered in whatever decides. That I think is another point in terms of, you want to feel like when you read the facts or read the story, you say, “That is wrong or that shouldn't happen or it's fine, or whatever.” There's a gut response to that. Of course, the legal analysis. I think that's part of the process that needs to happen in this analysis you're talking about. Like, do we have a compelling it doesn't feel right story or do we not because of facts or whatever?

We're all trained issue spotters. If you write the facts in a certain way, the judge ought to be able to read those facts and think, “I'm about to hear some arguments about these couple three things.” If you really got to be able to do that.

Sometimes I get that in my law school clinic students where there's like, this is a very interesting story or whatever, but I'm like, “That story has nothing to do with the legal questions they're about to tell me about.” These things need to match that interesting story, very empathetic, but I don't think that's what I'm deciding here or what the court is going to have to decide. We're going to put that aside and we're going to deal with the story that matters for the legal decision-making. I think especially at the appellate level, that's new for law students to do. Let's focus on that. Good training for the future. What about argument? I would say maybe at the district court level, what is most helpful?

Assume that the judge is prepared. Do not come in and summarize the brief. I've read the brief already, and there may be something in it that you think you need to call out or emphasize or explain because it's perhaps nuanced in a way that I could have missed on a cold read. We don't have hearings as a matter of course.

In my courtroom, if we're having a hearing, there is a question that needs to be answered, or there's something that is not, I'm not understanding properly, or maybe the briefs are passing like ships in the night, but there's a reason we're here in the room together, and it's not because I haven't done my homework. Assume that the judge is prepared, and begin by saying what you want to emphasize. A PowerPoint which is a narrated summary of the brief is a guaranteed path to an underwhelming oral argument.

A narrated summary of the brief is a guaranteed path to an underwhelming oral argument.

Would you ask those questions upfront or before people start presenting? These are the things I'm concerned about or thinking about.

Sometimes I will sometimes I'll say brought us together because I really want to discuss this one specific issue. Here is my understanding and please tell me if I've misunderstood and I want to hear what you have to say about that specific thing. Other times if an issue has a lot of moving or emotion has a lot of moving parts, then I will just give the opportunity to say, “I have some questions, but before I ask any questions, I want to hear you present your emotion and you present your response.” Particularly if a substantial amount of time has elapsed between the filings and sometimes you can come in and the parties have either settled or whittled down the issues.

Patricia Benke (Retired Court Of Appeal Justice)

Patricia Benke, retired California Court of Appeal justice.

I always say it is you're an advocate, but at the same time, appellate attorneys are a unique group because they are not only advocates, they are also friends of the court. Not abacus, but they're friends because they're there to help the court sort it out. If you come prepared with five pages of notes and you get the first question after one sentence and you never get to your notes, then that's what your job is. I teach legal writing as well.

I'm asked what makes a really great appellate attorney. What characteristics? I always say the same thing. It's the attorney who walks into court with five cases dead set against them, and they walk out the prevailing party because they have taken those five cases, they have put them together, they've synthesized them, and they've analyzed how their case fits into that rubric. Always looking for rubrics. How do these all fit together? Do they? If they don't fit together, what can I do to do that? How can I help the court put them together?

Judge Lucy Koh

Judge Lucy Koh from the US Court of Appeals for the Ninth Circuit. Thank you. What is your top tip for appellate brief writing?

Top tip for appellate brief writing: Less is more.

Less is more.

That's perfect. I love that. I love the succinctness of the answer. Top tip for effective oral argument or helpful oral argument.

Answer the question. Respond to the focus order. You would be surprised how many attorneys ignore the focus order. I was surprised.

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Christine Calvé