February 12, 2019 Articles

Oral Advocacy, Brief Writing, and Professionalism: Tips for New Litigators

Advice for new litigators who need to know everything law school and bar study didn’t teach them.

By Safie Da Costa Soarès

For the new litigators who need to know everything law school and bar study didn’t teach them, and need it now, I gathered advice from Associate Judges Marisa J. Demeo and Yvonne M. Williams, on the Superior Court of the District of Columbia, and from two experienced practitioners, Nneka Ukpai, associate at Paul Hastings LLP, and Paula T. Edgar, partner at Inclusion Strategy Solutions LLC.

Oral Advocacy

What is the most common mistake among new litigators when it comes to oral advocacy?

Judge Demeo: New litigators often neglect to anticipate the arguments from the other side or the questions the fact finder is likely to have.

Judge Williams: Failure to be well prepared, including knowing the relevant cases and your facts.

Nneka Ukpai: Newly minted attorneys often attempt to mimic others who are effective. Although modeling good habits is encouraged, you have to be your authentic self if you want to gain trust and credibility in your field.

What makes for an effective opening statement and closing argument?

Judge Demeo: Effective opening statements and closing arguments will be tailored to the fact finder. If your fact finder is a jury, avoid being too technical and make sure your facts are presented clearly. If your fact finder is a judge, you can afford to engage in a more technical presentation.

Judge Williams: This depends on which side you represent. For criminal cases, if you represent the government, you may have a longer opening. If you represent the defendant, keep it short and focus on the reasonable doubt burden of proof and the relevant facts. Both should introduce the jury to what they are about to see. For closing arguments, be organized and demonstrate very clear knowledge of the facts and how they support your theory.

Nneka Ukpai: Both should have a clear and consistent theory and theme. The opening should tell a story and preview your key pieces of evidence, while your closing should tell the same story and remind the jury what they heard during the trial. Having a short and memorable theme will conjure your fact finder’s attention and help them review the evidence in the context of your story.

What is the most effective way to conduct a direct examination?

Judge Demeo: You want to guide your witness in telling the story by asking questions that break the story into segments because it makes it easier for the jury to follow. Also make sure your line of questioning covers all of the elements you are trying to prove.

Nneka Ukpai: The most effective direct examination makes the witness the star and the sole focus for the fact finder. This means that the attorney should fade to the background—first, by positioning themselves near the jury and, second, by asking only open-ended questions that allow the witness to give full narrative responses.

What are five key strategies for an effective cross-examination?

Consolidated answer by Judges Demeo and Williams, and Nneka Ukpai: (1) Only ask leading questions; (2) ask only one fact per question; (3) never ask a question you do not know the answer to; (4) be prepared to confront the witness with documents, including annotated transcripts and other prior witness statements; and (5) organize your cross-examination into logical blocks, and start and end on your two strongest points.

What are some crucial decorum rules to abide by in the courtroom?

Consolidated answer by Judges Demeo and Williams, and Nneka Ukpai: Until an attorney is familiar with a particular courtroom or judge, show deference to the court. This means requesting permission to move freely about the courtroom, requesting permission to approach the witness or the bench, requesting a simple “court’s indulgence” if you need a few moments to gather your thoughts, and standing when addressing the court. Some judges may be less formal than others, but start at the utmost deference level and let the judge peel it back if he or she so wishes.

What are three tips you wish you knew earlier on in your career regarding oral advocacy?

Judge Demeo: (1) Do not assume that the person you are arguing before knows the facts as well as you do; (2) knowing the weakness in your arguments is just as important as knowing their strength; and (3) it is great practice to find out a judge’s preference before you appear before him or her.

Nneka Ukpai: (1) Everyone makes mistakes—it is better to own your mistakes and correct the record than to have someone else do it for you; (2) opposing counsel may be just as nervous as you are; and (3) sometimes the best answer to a question is “I do not know, but I will get you the answer, Your Honor.”

Brief Writing

What is the best book you recommend to improve brief writing skills?

Judge Demeo: The Bluebook. Many attorneys still fail to cite cases properly.

Judge Williams: The Elements of Style by William Strunk and E. B. White. I also recommend using a thesaurus to avoid repetitions.

Nneka Ukpai: The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts by Bryan Garner.

What are new lawyers’ most common mistakes in brief writing?

Judge Demeo: Citing case law from other jurisdictions when there is controlling law in their own.

Judge Williams: Filing briefs with typos in them, not effectively proofreading, and having incomplete and unsupported arguments.

Nneka Ukpai: Neglecting to organize their thoughts through a well-developed outline, and not looking to prior successful examples before beginning.

What makes a brief memorable?

Judge Demeo: A memorable brief will present the strongest argument first, but also provide alternative arguments and offer a thorough analysis.

Judge Williams: It has to be so well written that it could be used as an order.

Nneka Ukpai: I am a fan of alliteration and punchy opening lines. If you can make the readers smile, they will continue reading.

What are the three main qualities of an excellent brief?

Judge Demeo: (1) Well organized, (2) cites to sources that actually support the argument made, and (3) uses correct grammar and has no typos.

Nneka Ukpai: (1) Clear, concise writing. Make your point in as few words as possible. (2) Use plain language. This means avoiding legalese and Latin, especially phrases such as “assuming arguendo.” And (3) be relentlessly scrupulous in citation and characterization of case law. Your reputation before the court and in your professional community is your most valuable asset.

How does one properly edit a brief?

Judge Demeo: Take time away from it and reread it later. You might have a better way of organizing your arguments.

Judge Williams: If time allows, I recommend sleeping on it and then editing at the time of the day when your mind is the clearest.

Nneka Ukpai: Ask for help. When you have been staring at the same document for days, sometimes your eyes gloss over errors that are immediately apparent to others. There is nothing wrong with a fresh set of eyes!

What should a writer always keep in mind when drafting?

Judge Demeo: The need to be concise and on point. If you fail to do that, your main points will get lost.

Nneka Ukpai: Always keep your audience in mind. If you are a newly minted attorney at a law firm, you are writing for the senior associate or partner who requested the work. You are also writing for a particular judge or panel of judges, so look to examples of briefs that have persuaded them in similar cases.

Professionalism

What is your advice to new litigators on proper dress code for the courtroom?

Judge Demeo: Look professional. You can have your own style, but make sure you are still identifiable as a lawyer even if you are not wearing a traditional suit. Under no circumstances should you appear in court wearing tennis shoes.

Judge Williams: I recommend the traditional suit and tie. Remember that courtroom dress code is neither business casual nor casual. Unfortunately, many attorneys tend to forget this in state courts.

Paula T. Edgar: It is important to remember that the legal profession is steeped in tradition. I recommend sticking to a formal dress code with 85 percent of your attire and using the remaining 15 percent to showcase your individuality with colors or accessories.

What are some overlooked professional qualities to have in the workplace?

Consolidated answer by Judges Demeo and Williams, and Paula T. Edgar: Being a team player—sometimes a colleague might need help with a task that is not part of your job description. Pitch in anyway. Civility, empathy, and cordiality are often overlooked, yet critical qualities of successful professionals.

What are the professional attributes that are mostly lacking, based on your experience?

Judge Demeo: Failing to identify and adapt to your workplace’s culture. It is critical to properly assess the culture at your workplace if you want to fit in and be successful. Don’t be too casual in a formal environment. Being too formal in a casual environment will also play against you. Another issue I see often is attorneys trying to conduct formal business in an informal way, e.g., calling chambers for relief that should be requested in a motion.

Paula T. Edgar: Effective communication is severely lacking within the legal profession. Being strategic, straightforward, and civil when communicating, and avoiding assumptions and backhanded comments, would improve understanding and reduce contention.

How do you deal with legal professionals’ lack of professionalism whether in telephone communications or others?

Consolidated answer by Judges Demeo and Williams, and Paula T. Edgar: If it is a telephone communication, tell the other party you would rather communicate in writing; it will defuse the situation and also create a record. If this happens in person, be forthright while maintaining a professional tone, and tell the other party what your expectations of communications are. You can say something like “I do not tolerate being talked to this way,” “what you said/did was inappropriate, we can move forward as colleagues with respect,” or “our past few conversations have been tense, is there something we should address before we go back on-line for our respective clients?” Lastly, if these strategies don’t work, ask a colleague or mentor for advice on how to engage.

What are your pet peeves when it comes to email communications?

Judge Demeo: (1) The phrase “gentle reminder,” (2) personal messages in signature blocks, and (3) writing in all caps.

Judge Williams: Unprofessional or overly friendly tones, and typos. Even though an email is not a brief, you are still a lawyer and you are expected to use correct grammar.

Paula T. Edgar: Improper use of the “reply all” function. It becomes more of a nuisance than an added value to the people on the email chain when their inclusion is unnecessary.

Safie Da Costa Soarès is a judicial law clerk to the Honorable Jonathan H. Pittman in the Superior Court for the District of Columbia.


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