advocacy

Appellate Advocacy

After I had recently lectured about how to stand up and be persuasive in appeals court, one of my students came to a private coaching and said, “Frankly, at our firm we frown on using gestures, and also on the idea of starting with a theme.” My lecture had specifically addressed in detail how to launch an argument by stating a theme and using a simultaneous open gesture. The idea is to jump in with intellectual substance, distilling your argument to a central point that goes to the heart of the matter, while at the same time allowing your hands to assist and support the language. It is without doubt the best way to start.

Not enough lawyers use this simple idea. If you watch objectively, all the most experienced people in appeals court are doing two things: using fairly simple language to argue complicated matters, and using their hands to help them talk. (Watch the judges, too.)

Thus, beginning with a succinct theme has more than one advantage. Perhaps most obviously, you can memorize a theme, and having your first words on the tip of your tongue gets you launched comfortably. In many courts, you may only be able to state a sentence or two before being interrupted by the first question. Make it elegant. You discover your theme during focused, diligent and extensive practice, examining your strengths and discussing them with colleagues and in moot sessions. Your theme is your rock-solid foundation, the island you can keep swimming back to when the choppy waters of questioning get rough. Since you want to keep coming back to your strongest arguments, your theme is the headline behind the biggest ideas you have examined thoroughly. It is the mental repository of your strongest, most well-spoken ideas.

Beginning with your succinct theme also allows you to start on familiar ground. You can breathe easy for at least one or two sentences. You can get yourself situated behind the lectern. You can set a proper pace, one that is not too fast. You can trigger your first gesture, and settle down. Granted, the relative number of seconds you have to settle down in appeals courts is short. Take what you can get! Practice what seems like the easy part: find a lectern, step behind it, place your notes on it, and take three seconds to adjust your body and take a breath. Count the seconds: one-thousand-one, one-thousand-two, one-thousand-three. There is not a panel on the planet that will not give you three seconds. Bring your hands to a ready position (don’t touch that lectern, please), and give your theme to the panel by literally using your hands.

As I have been teaching appellate courses over the last six weeks, my colleagues and I have had deep discussions about how to get our students—all practitioners—to find themes. Many lawyers begin with a meandering compound sentence instead of a simple one, then wander in a thick linguistic forest of complicated issues, never emerging into a sunny meadow of big ideas and direct language. Why do lawyers hesitate to start with this powerful weapon of recency? Does it seem too bold, outside the norm? Too radical? Uncool? I like themes because they give you a moment of confidence to launch from. My colleagues like themes because they help you organize your thoughts. You start strong.

To find examples, I looked up themes from experienced advocates. Here is one, used two weeks ago in front of the U.S Supreme Court:

“Mr. Chief Justice, and may it please the court: “We’re talking about a funeral. If context was ever going to matter, it has to matter in the context of a funeral.”

Or from the opposing side, a slightly more long-winded, but to-the-point theme:

“Mr. Chief Justice, and may it please the court: when members of the Westboro Baptist Church entered an ongoing, extensive, public discussion and wide array of expressive activities taking place in direct connection with the deaths and funerals of soldiers killed in Iraq and Afghanistan, they did so with great circumspection and they did so with an awareness of the boundaries that have been set by the precedents of this Court.”

Here is a short one, also from this month at the U.S. Supreme Court:

“Mr. Chief Justice, and may it please the court: Formality is indeed essential to testimonial utterance.”

Or:

“Mr. Chief Justice, and may it please the court: Mr. Moore established prejudice under Hill from his attorney’s failure to recognize the involuntariness and inadmissibility of the lengthy tape recorded statement obtained from him by the police.”

Or these:

“Mr. Chief Justice, and may it please the court: Background checks are a standard way of doing business.”

“Mr. Chief Justice, and may it please the court: This case involves a vaccine designed in the 1940s that was administered to Hannah Bruesewitz in 1992, some 30 years after scientists discovered a safer way to design the pertussis component of the DTP vaccine.”

These clear themes are topic sentences with decisive beginnings and conclusive endings. Some are short and sweet, some longer that I would suggest, but they stand out among this month’s arguments for the way they take the bull by the horns. When supported by gesture, they take on persuasive force.

Do you have an example of a good theme, one you heard or used yourself? Let me know!