A few weeks ago, I took a trip to the Michigan Court of Appeals to participate in “Motion Day Mentoring,” a program organized by the Oakland County Bar Association.  The purpose of the program is to familiarize new attorneys with the motions-day process at the various local courts.  The process was simple – watch the appellate arguments and get some insight from the panel.

I did take away some helpful insight and, as promised, I am going to share it with you.  If I were to extract three general tips from my experience, they would be:

1.  Put all your arguments in the brief – do not leave anything out, thinking you will address it at oral argument.

2.  Following from number one, it is not likely that you will be educating the judges with the facts and law supporting your case – they have read it all, and more.

3.  Finally, make sure you channel your inner orator.

Alright, maybe that last one is not something the panel listed as the ‘key to success,’ but it provides the basis for my personal lesson. 

We were going to hear oral argument on five cases currently on appeal.  I am not sure why, but as the day went on, the arguments got progressively better.  Despite the range of legal subjects at issue, the judges kept emphasizing one thing – do not waste your time reading, reiterating, narrating, etc., the facts of your case.  The panel made it a point to even stop counsel during his ten-minute-long fact narrative to let him know that it was not necessary to recite the facts, and that he should just get to his argument.  This was not a personal attack or dissatisfaction with the attorney, as one judge explained, but simply a reminder that they have had a few weeks to familiarize themselves with the facts, study the cases cited in the briefs and analyze the supplemental research provided by their clerks. 

Of course, this procedure is different from any other Motion Call Day where a judge might not have had the time to extensively study the large volume of motions presented before him/her on a weekly basis.  Attorneys should be mindful of that difference.  So, apparently, oral argument does not really mean much in appellate practice. The panel did kind of say it in so many words. That is why an attorney should put everything in the brief, thus emphasizing the sole purpose of oral argument as a place where the attorney may assist the judges if they have any questions.    

I agree that a well prepared thorough brief is essential.  But then what? I cannot just show up for my oral argument and open with: “Does the panel have any questions?” If a judge has read the facts of my case, analyzed the case law in my brief, and conducted his own research, what can I do at oral argument to strengthen my position? What tools do I have at my disposal, standing in front of a judge, that I don’t have on an 8.5 x 11 page?

Enter the art of great oratory.  A good speech is as much about performance and delivery as it is about persuading one’s audience of the substance of their argument.  Oral argument allows us to use our voice, intonation, and gestures to paint a picture with our words, to draw the imagination of our listeners.   Imagine listening to a person who speaks with a quick-paced voice, with erratic pauses and many useless words intertwined.  Picture that person speaking for thirty minutes.   Now imagine a person with a medium-paced, assertive voice, using proper intonation.  How long would you tolerate that person’s speech? Which is more convincing?

Two of the arguments that day really put these ‘tips’ into practice.  I was amazed that I found myself drawing a comparison table in my head, as one of the attorneys was applying the statutory language to the facts of the case.  He had really done the impossible – he made the Michigan no-fault statute sound engaging.  How did he do it?

• His argument was brief – five minutes, at most. 

• His argument was structured – he broke down each sentence into elements, and applied each element to the facts. There were no flowery, embellishing, useless words.
• His voice was calm and confident.
• He used repetition.

It was clear that he grabbed the judges’ attention.  They didn’t ask questions. They didn’t interrupt him.  That was the best argument of the day so far, but it got better. 

The next attorney achieved in three minutes, what a few couldn’t achieve in thirty.  She represented the defendant in a negligence case – plaintiff had tripped and fallen, allegedly, on a crack in the pavement that was covered by fallen leaves. 

The attorney did not provide the detailed facts of the case, she did not analyze the statutes involved, and did not summarize the binding case law.  She did show a photo of the ‘crack’ (produced by plaintiff) where plaintiff was demonstrating that she could not fit her thmb in it.  The attorney portrayed this through the eyes of the reasonable person would and how, really, the case was about a crack so small, that no reasonable person could honestly claim he/she tripped because of it.  Brief, simple, and to the point.  She used her voice and her gestures to argue common sense.  While she was summarizing her argument, the judges were excitedly nodding in approval and one of them even finished off the attorney’s  sentence (!) pointing out reasoning that she had probably argued in her brief.   This was most likely a winning result for that attorney’s client.

The lesson?  Don’t constrain yourself to the ‘legal’ arguments of your client’s case during oral argument – that’s the purpose of the written brief.  We have a brand – the theme of our client’s case, and we usually develop that theme at length.  The question is – how successful are we in marketing that theme?  Compare appellate oral argument to a good, catchy commercial.  Commercials don’t make a laundry list of reasons, from the perspective of a mechanical engineer, why one should purchase that car.  Commercials put things in perspective for their potential consumers by placing a person in the automobile.  Commercials are brief.  Attorneys should do the same – make it brief and use the ‘reasonable person’ to put our case in perspective.