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April 21, 2023 Practice Points

Justice Kagan’s Top Tip for Highly Effective Advocacy

“Recognizing the true heart of your case and the most important argument to make is the greatest skill a litigator can have.”

By James Azadian

The “new normal” has set in at an unparalleled pace, replacing in-person appearances with Zoom depositions and virtual court hearings, perhaps forever changing the way that judges and litigators do their jobs. And although these changes make the field of litigation look and feel quite different from what we were once used to, the essential tools for highly effective advocacy remain unchanged.

At the Ninth Circuit’s Judicial Conference held in Montana in summer 2022, Supreme Court Justice Elena Kagan reminded litigators that their most important tool is an understanding of their strongest argument, married with clarity. Whether writing a legal brief or presenting oral argument, the highly effective litigator will focus the court on the client’s strongest argument and present that argument clearly. According to Justice Kagan, “recognizing the true heart of your case and the most important argument to make is the greatest skill a litigator can have.”

Though it sounds like simple-enough advice, Justice Kagan noted that very few litigators follow it. If you are “old school,” post a sticky note on your computer with this mantra, “The key to litigation success: identify your strongest argument and make it clearly!” Or, if you fancy yourself “new school,” emblazon the phrase as your screensaver or on your wallpaper. Read it each time you sit down to write a court brief or prepare an oral argument.

While it may not guarantee success in every case, you’ll have the assurance that you advocated to the best of your ability by presenting your strongest argument clearly.

James Azadian is the web editor for the Litigation Section’s Appellate Practice Committee and is a member of the ABA’s Standing Committee on Amicus Curiae Briefs. He is the a member with Dykema Gossett PLLC in Los Angeles, California and teaches appellate advocacy at Pepperdine Caruso School of Law.

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