|Muskrat News Legal Briefs
My fellow students here at the Durham Tattoo Parlor and School of Chicanery:
Many of you think you don't need to worry about your oral advocacy skills. You assume you'll spend a few years toiling in the bowels of some giant firm, cranking out memos consisting of reams of data stitched together with a few sentences of analysis plagiarized from AmJur2d. The only oral skill you'll need will be the ability to bite your tongue to choke back your growing bitterness and hatred for the world until the day you mail your last student loan repayment check. But just in case you're one of the few lifers who eventually meet a real judge, I suggest you take appellate advocacy.
But take it with a grain of salt. To my great distress, I find that the books assigned for my appellate advocacy class are full of useless advice about framing arguments, intelligent use of time, and how to deal with questions from the bench. These skills are useless. The real pinnacle of oral advocacy is achieved by those who follow a few simple rules.
Judges want to have a conversation with attorneys, not be lectured to. Start off with some small talk - the weather, sports, the physical appearance of female court staff. You'd be surprised how much tension can be relieved by starting out with "May it please the Court, is it hot as a Mo-Fo out there or what? Speaking of hot, that clerk looks like she could crack walnuts with her thighs. Didn't I see her at Hooters last night? Dang!"
Be aware of subtle signals and body language. Many judges are members of secret societies and organizations such as Skull and Bones, the Masons, the Vigilant Order of the All-Seeing Orb, and Sam's Club. Learn to look for the signs of membership - large signet rings, third-eye tattoos, or lapel badges saying "Hi! I'm Judge Bob! Check Out My Orb!" Since members will usually rule in favor of fellow members despite the law or facts, join as many groups as you can.
If you can't join these outfits, pretend. Many societies use hand signals to announce themselves to the initiated. Pick up a copy of "Secret Hand Signals for Dummies" at the Malpractice Barn and practice recognizing and returning signals such as "scratch right earlobe, then tap left hand with pen or pencil (means "I am a fellow Rosicrucian") or "Wipe imaginary dandruff off left shoulder" (means "Bunt").
Watch your demeanor and use humor sparingly. Courtrooms are serious places, and you are expected to take the occasion seriously, even if you have a dog of a case and are just going through the motions to milk the client for an extra few grand. If a judge makes what he clearly believe is a droll remark, grin briefly and continue. Do not respond with references to farmers and traveling salesmen. Also, don't be too honest. Phrases like "I know - I can't believe this crap either. But $400 an hour buys a lot of mouthwash" sound better in the partner's boardroom than in open court.
A great deal of success in oral argument comes from establishing your credibility. Since you probably have none, try to undermine the credibility of your opposing counsel. It never hurts to make the universal thumb-to-mouth, pinky in the air sign for "He's been drinking" if your opponent stumbles over a word, and it's always a good idea, when taking over the podium from your opponent, to wrinkle your nose as if smelling something unclean while shooting a questioning glance at them.
Finally, you must present a clear roadmap in your argument to give the judges an outline of the issues. Bad roadmap: "My client deserves a new trial for three reasons: He was coerced into confessing, and he's dumb as a stump. OK, that's two." Better: "Your honor, after we blither-blather here for an hour, you're either going to rule against me, in which case I'll crawl across your desk and beat you senseless with your own gavel, or you'll rule in my favor, in which case you'll find a brand-new Mercedes full of hookers waiting for you in the parking garage." Best: "Hi, Mom! Rule for me and you can see the grandkids again."
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