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ARTICLE

Effective Advocacy Tips

Marie Mercier

Summary

  • The brief is is the only assured opportunity to communicate with the court.
  • Avoid alienating your audience by over-advocating in the statement of facts.
  • Advocates should make sure they have a clear understanding of dispositive issues and focus on those.
Effective Advocacy Tips
Barry Winiker via Getty Images

An excellent resource for appellate advocates in the new year is last year’s webinar entitled “Know Your Audience: Effective Advocacy at Every Level of Court.” Presented by the American Bar Association’s Appellate Practice Committee and Litigation Section, the webinar features insights from Cate Stetson, Judge Joseph A. Greenway, and Judge Leon Holmes, with Jennifer Fischell moderating.

One of the many takeaways from the webinar is the importance of the brief. Panelists noted that this is the only assured opportunity to communicate with the court, since oral argument is not afforded in every case. Even if oral argument is granted, when an advocate enters a courtroom, their reputation precedes them precisely because of their brief.

Panelists emphasized that the object of briefing is to persuade. In this respect, advocates should take advantage of all opportunities for persuasion, including in the table of contents, introduction, and summary of the argument. These can be overlooked opportunities to guide the court to reach a decision in a client’s favor. However, panelists cautioned that advocates should avoid alienating their audience by over-advocating in their statement of facts. Instead, the statement of facts should be carefully crafted so that the reader draws the desired conclusion on their own.

Finally, in terms of framing and structuring the brief, panelists encouraged advocates to think through their case and identify the issues on which the case turns. Advocates should make sure they have a clear understanding of those dispositive issues and focus on those in their brief and at oral argument.

Panelists also shared general “do’s and don’ts” for effective oral advocacy. In terms of oral argument, advocates should keep their focus on persuasion and listening, as well as on the reaction of their audience. Advocates should be sure to answer the question asked and avoid saying the following to a questioning judge: “I’ll get to that,” or “the better question is,” or “I’d frame that slightly differently.” Advocates should also take care not to talk over the judge asking the question. Finally, advocates should aim to “identify the crack in the concrete” that can be used as leverage to turn a case their way. As a suggestion for doing this, an advocate can prepare three sentences explaining why their client should win. If an advocate can do this, this is a good way to begin an argument in an appellate court and can also help guide the presentation of evidence at a jury trial.

Effective advocacy entails knowing your audience, and the panelists provide these and other helpful pointers for (hopefully) guiding the audience to your side.