Sylvia Walbolt, a colleague at the American Academy of Appellate Lawyers and a giant in the appellate world, has an article in this month's ABA LItigation magazine well worth reading – "Twenty TIps from a Battered and Bruised Oral-Advocate Veteran." There are a gazillion articles being written on things like oral advocacy, but this one stands out.
The first thing that struck me is probably beyond the points she was trying to make: you can tell what a good brief writer she is by how she constructed the article. Let's face it, oral argument may be the showy part of appellate advocacy, but it's the brief writing that's most important. She writes very, very well for appellate purposes: (1) have a short and snappy but informative heading in bold face; (2) make your point concisely; (3) illustrate in a concrete and pithy way; (4) move on quickly to next point, and repeat. The importance of making an abstract argument concrete through a salient, memorable real-life example, illustrating each point, broken down into short, digestible packets, should not be understated, and she does it brilliantly here.
Beyond that, the substantive points she does make about oral argument include those you will find in other similar articles — but again she illustrates with short and snappy stories that help the point actually resonate with the reader. She also includes some points that aren't always emphasized.
For example, her first tip – "Get to the point right away" is vital and not always stressed. It is more important than ever in this world of short attention spans, less time allotted to argument, and higher volume work. You have to cut to the chase. Less is more.
To illustrate (remember, this is what you are supposed to do?): Many years ago I went to a showing of an old movie called Lost Horizon at the University of Chicago, with its uber-famous, great director Frank Capra there to tell some stories and answer questions. One story he told is also in his autobiography and very telling. While the movie (Ronald Colman wandering about Shangri-La) turned out to be a big hit, in previews it was a huge flop. They all sat around wondering what had gone wrong. Then Capra figured it out. He threw out the first two reels — all that exposition back in England, character development blah blah blah — and cut right to the big scene with all the characters flying around in bad weather and crashing. He cut to the chase and skipped the prelude.
And isn't this how movies and novels are typically structured today – you start with a big splashy scene that's the heart of the story right up front, followed by flashbacks if necessary? There's a reason for this. Get to the point instantly. The days of 300 pages of exposition are over and if there is still a place for it today, it's not in an oral argument. If you can say "This case is about X – one sentence" that's a good opening. Go from there.
Digression: here's another lesson from a great film director that can be applied to appellate advocacy: if you're given lemons, make lemonade.
There's a famous scene in a movie called The Little Foxes, directed by William Wyler, where the male character (Herbert Marshall) is flailing around trying to get up a set of stairs to get his heart medicine, and his wife (Bette Davis) just sits in an arm chair and lets him die on the stairs (accompanied by a swell of Warner Brothers music). Wyler was known for "deep focus" - keeping everything in focus both in the forefront and background. But in this particular scene, Wyler closed in on Davis's face, with the flailing just off in the blurred background. A famous scene in film circles. In another of these Q&A sessions, some earnest young film student asked Wyler if he was psychologically trying to blah blah blah and waxed rhapsodic about how brilliant the director's choice had been. Wyler looked at the student and said, "Herbert Marshall lost a leg in World War I. I couldn't film him going up stairs." So he made great lemonade. Play the hand you are dealt.
Back to Sylvia's article.
Sylvia's second point is "have a two-minute drill of what you must tell the court in order to win." This is a good exercise and excellent discipline. Then you can do your best to fit that two minute argument into the dialogue with the court. We all know, if only from watching the Celtics play, how important that two minute drill can be. Have yours ready and shoot straight (a good center couldn't hurt, either).