Law is not black or white, it's grey

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Preparing for oral argument

Preparing for oral argument in the Florida Supreme Court, Effective oral argument

Take this with a grain of salt. I could not get on moot court in law school. But, I will outwork most lawyers every day of the week. Never underestimate the power of elbow grease. I spent about 200 hours preparing for 20 minutes before the Florida Supreme Court.

If you are preparing for oral argument, I have some tips for you. They are based on reading a book on oral argument, talking with people a lot smarter than me, watching video of oral arguments, and actually arguing before the Florida Supreme Court. So, here it goes:

Effective oral argument

Be prepared. Know the facts of your case cold. Know them better than anyone else. Know how the facts are applied in other cases similar to yours. Facts are important because in most cases, other than cases of first impression, the law probably will not be an issue. The issue will be how the facts are applied to the law.

Listen. I watched a number of oral arguments preparing for my performance. It is amazing how many lawyers don't listen to what the judges are asking.

Look. At oral argument before the Florida Supreme Court, I was much closer to the justices than I thought I would be. You can read their facial expressions. You can and should have eye contact with each of them. Eye contact is essential.

Discern the justice's view. You may or may not know their view based on their demeanor and questions. In my case, I looked up other cases similar to mine to see where the justices might lean. Anticipate the hard questions from the justices against your position.

Time. In the Florida Supreme Court, you get 20 minutes to argue your case. If you are the appellant, you go first and probably want to reserve a few minutes for rebuttal. Remember that primacy and recency are important. This is true, even though my feeling was the justices had their minds made up before oral argument.

Identify and maintain two solid arguments. Simplify the complicated. You should have two great arguments down pat.

Do not thank them, tell them it is an honor or use pronouns. I am guilty of thanking them at the end of my argument. We all make mistakes.

Opening argument. When you start, you have the undivided attention of court. Keep it. Get on with it. Do not use fluff. I did not even say “May it please the court.” That says nothing. Make an impact. You are only going to get a few lines in before they interrupt you with questions. I watched a number of the oral arguments and almost invariably the lawyers get interrupted with questions quickly. Introduce yourself and who you represent.

Good morning. Grey Tesh on behalf of Donna Horwitz. (Note I did not say appellant or respondent. That is purposeful. My client is a person with a name, a family, hopes, dreams and feelings. Use your client's name. It humanizes them).

This is a case about silence...(pause) or more specifically, the meaning of silence...(pause). Look them in the eyes when you make your argument. Let them know you are better prepared than anyone in the world. This first 10 seconds is critical.

As appellee, address questions and argument from the justices. You can listen to what they are thinking for 20 minutes when they are grilling the other lawyer. Cut the crap and address their issues.

Justice_______ asked Mr. ______________ whether _____. He answered _______. In fact, however, this court's decision in ________ forecloses that contention and makes clear _________.

Be confident, polite, assured, not arrogant or flippant. Be cool. Be nice to opposing counsel.

Confront deficiencies in your case. Embrace them and distinguish them.

Never let the judge's tone dictate your answer.

Respond promptly to questions.

Offer immediate, direct and satisfactory answers to a justice's question.

If you don't know the answer, say “I don't know”. When Justice Lewis asked me, and I am paraphrasing - Why should we decide this on Florida constitutional grounds if we can just decide it on evidentiary grounds? - I did not know the answer. It was the one question I had not anticipated. I said “I don't know the answer...I plead the 5th”. It was a 5th amendment Miranda rights issue. Everyone laughed, which I suspect does not happen often in the Florida Supreme Court. However, that moment of levity gave me time to think about the question and formulate an answer. The answer was uniformity. If the case is decided on constitutional grounds, everyone will know what the law is and defendants will all be treated the same. If the case is decided on an evidentiary basis, depending on what judge you are in front of, each defendant will be treated differently. It is okay to say you don't know the answer.

Avoid reading. Always have direct eye contact.

Each exhibit included in the record is available from the clerk. Call the clerk for availability. You can use it as visual aid if necessary.

Close coherently. It should be a couple of sentences long. Tell them what you want. Affirm the 4th DCA decision, grant a new trial, reverse, etc. I am guilty of not doing this in my argument, but you should do it in yours. I will do it in my next one.

Stand straight. Don't lean, slouch, or move back and forth.

Keep your hands at your sides or resting on the podium. Avoid excessive gestures.

Speak clear. Be audible.

Use “this court” or “your honors”.

Use affirmative language like “we contend” “we submit” or “that case holds”.

Sit up straight and listen when opposing counsel is getting grilled. Take notes of the justice's questions. Have a poker face.

Dress up.

Be organized.

Be flexible. Do what the justices want you to do. Answer their questions.

Do a notice of supplemental authority at least one week before oral argument if you find something new to argue.

Make a one page outline and memorize it.

Visualize yourself easily and calmly answering the questions. I am a huge believer in meditation and visualization.

Anticipate the justice's questions. Use role reversal. I had a couple of friends ask me the tough questions, interrupt me when I was trying to answer, etc. Conduct multiple mock oral arguments.

Save a key point for answering a question from a justice. It is likely to have a greater impact.

Lastly, have a conversation with the justices while arguing.  I think of it as having a conversation with them on my living room couch.

So, there you are. A few tips for effective oral argument before the Florida Supreme Court, or perhaps another appellate court.

I hope it helps you and your client, unless you are the government or a corporation. If so, please disregard this.

-Grey

"Law is not black or white, it's Grey"

561-686-6886

As a Florida Bar board certified criminal trial lawyer and injury attorney, I try to win every case.  I don't.  When I lose, I file an appeal.  If you need a Florida appellate lawyer, I can handle your appeal whether it is in West Palm Beach, Orlando, Fort Lauderdale, Jacksonville, Tallahassee, Tampa, St. Petersberg, Fort Pierce or any other city in Florida.