Appellate advocacy. Many of us do mock trial in school, and if we're lucky enough, are trained by experienced advocates in practice. Some, however aren't so lucky, get bad advice, or need a refresher course after years stuck in state trial courts.
The Sixth Circuit has a series of videos, produced by the Federal Defenders Office, aimed at training Criminal Justice Act appointed counsel on the finer points of effective written and oral advocacy, training on electronic case filing, tips for dealing with clients, and advice on avoiding billing mistakes. (Hat Tip to Squire Sanders.)
Effective Appellate Advocacy
The most popular video, if the law blogs are any indication, is Judge Jeffrey S. Sutton's tips for effective appellate advocacy. Some of his pointers, paraphrased, include:
- Weave a narrative. He complains that too many attorneys toss in a multitude of alternative theories of the case, one after another, both in their written brief and oral arguments. With so many arguments, these lawyers rarely stick to their guns. This is basically the opposite of strength in numbers.
- IRAC. Remember this from law school? Issue, rule, analysis, conclusion. He likes it, and notes that it is popular for a reason.
- Organize. Group positive issues and facts separately from those that go against you. Start positive, and go through each issue and why you should win. Then address the facts, law, and policy arguments that go against you and why they are unconvincing. (He notes that judges get less interested as the brief goes along, which plays in your favor if you organize your brief in this manner.)
- Summary of the Argument is very important. He reads these religiously. Many of his fellow judges bring the summaries, but not the full briefs, to the bench.
- Statement of Facts should be chronological and material. Tell the story, but don't elaborate on facts irrelevant to the issues you'll be addressing. He often has underlying thoughts or instincts about who is right after reading only the facts.
- He reiterates his pet peeve about jumbled theories of the case when it comes to oral arguments. Lawyers who present a salmagundi of theories, or who spend all of their time trying to rebut the other side's arguments, quickly convince the judge to stop listening. Conversely, someone with a strong theory pushes it in the brief, and in oral arguments, and is far more convincing.
- Ceding ground that you can't win is effective, shows that you are reasonable.
- Don't recite facts in oral arguments -- they have the facts, they know the facts, and if you start rambling about back story, Judge Sutton assumes you are unprepared and afraid to answer questions.
That's a lot of outstanding advice, right? And that's just some of what we learned from that one video. We're adding the other five to our playlists immediately.
- Was Ret. Judge Martin, The Liberal Lion, Lying? Case Sent to DOJ (FindLaw's Sixth Circuit Blog)
- Stop and Frisk Ok'd for Man at Scene of Burglary With Beer, Gun (FindLaw's Sixth Circuit Blog)
- The Curious Marijuana Case of USA v. Gerald and Jeremy Duval (FindLaw's Sixth Circuit Blog)