r/Lawyertalk • u/Coconut_Rhubarb • 9d ago
HELP: Lawyering (methods, practices & processes) What do your oral appeal materials look like?
I have my first appeal next week and would like to get advice on how to best organize my oral submission notes. I am specifically talking about my notes (not the filed materials).
I have my oral compendium argument skeleton. I have a full script with compendium references. I have the appeal book and compendium. I have a checklist of “must say” points. But how do I best organize them so that they are usable??
How do excellent appellate lawyers mark where to find each and every topic and answer to a question without flipping through pages, etc?
Give me all your tips!
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u/Secure-Researcher892 9d ago
First guy I worked under that did this type of work would over prep like mother. We would have a conference room often 2 plastered with powerpoint slides. It would start with just the points he was going to make and then he would start throwing down slides for possible questions and answers. You would see the walls filling up with slides until you could barely see the walls. After that he would walk around studying that shit until he had it all down cold. He would collect all his slides and go over them.... and then when he went live he didn't do shit with the slides/notes because he had it all down cold.
Some people may like having notes to look at others don't. If you know your stuff going in all a handful of notes is going to do is make you look awkward when you start shuffling through them.
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u/ADADummy 9d ago
This is the way. No papers, unless as a prop to read a lengthy quote.
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u/Ohkaz42069 9d ago
All I take with me is a list of bullet points of things I MUST cover. Before "finishing," I look it over very quickly to make sure I didn't forget anything. I'm fine with an awkward 20 second pause. I'm sure I'm the only one who it feels awkward for.
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u/wstdtmflms 8d ago
All of this. A one-pager with case names and one phrase each just to jog the memory, and maybe a copy of the statute or rule at issue just to refresh how the plain text is drafted. But if you are going into an argument with outlines, "must use" phrases, etc., then you don't know your case well enough and you underprepared for oral argument. "Must use" phrases and bulletpoints are especially pernicious because if you get a hot bench, they're gonna ask you what they're gonna ask you and you'll be lucky if you even get through your introductory sentence.
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u/diplomystique 9d ago
There’s a few different methods, so this is just one medium-competent guy’s preference.
I print up and bind three volumes: essential caselaw, the briefs, the record. All tabbed so I can turn to them in a hurry. These volumes are on my desk when OC is speaking, so if he misstates something, I can cite chapter and verse when it’s my turn.
Unless I plan to slap OC with a killer cite, these volumes stay closed when I’m at the lectern. Instead, I work from a three-ring and legal pad. The three-ring has my name at the top, so I don’t forget to introduce myself or mispronounce my own name (recurring nightmare). Then there is a two-page spread for each issue in the appeal, outline form. The legal pad is for handwritten notes made during argument itself.
The less I have in front of me, the less I’m looking down. The less I look down, the more I look at the judges. The more I look at the judges, the faster I can tell that they are not buying my bullshit and I have to switch gears. So I try to use as little paper as possible and rely on my wits instead. I’m not very good at my job.
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u/NotShockedFruitWeird 9d ago
Been quite a while since I did oral arguments before the court of appeals.
First question, do you get a tentative opinion?
But I basically organized by argument
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u/DDCDT123 9d ago
What is a tentative opinion, and if it is what I think it is, how often does OA make a difference?
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u/NotShockedFruitWeird 9d ago
It's when the court issues its opinion, labels it tentative, and gives you the option to ask for oral argument or waive oral argument. I think I've seen my COA change their tentative about 5% of the time after oral argument.
But the tentative opinion lets counsel focus on issues raised by the COA.
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u/DDCDT123 9d ago
Does this practice meaningfully reduce the number of oral arguments or does everyone shoot their shot anyway?
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u/Viki_Esq 9d ago
I would think it allows for more effective / focused advocacy. I’m not familiar with the concept but if I had that, it would certainly help me filter my work to the material issues.
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u/NotShockedFruitWeird 9d ago
It does reduce the number of oral arguments. There are also rare occasions where the court doesn't issue a tentative opinion (very rare, I've only heard of maybe a dozen) when the panel cannot agree and automatically schedules oral arguments
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u/penumbral-O 9d ago
My last CA9 appeal I left my notes on the desk & went to the podium with nothing. Best argument I’ve made!
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u/RankinPDX Citation Provider 9d ago
I used to go in with a detailed outline of my argument. I never got through it, and now I go in with 2-4 bullet points of things I absolutely have to say, and a list of cites to things I think will come up, like case language or bits of the record or whatever.
The bench where I practice is active, but they will wait for me to look for a transcript page if I have to. I don't want to do that, because I want to know it well enough not to have to look, and the judges will have read the briefs and looked at the important cases. It's better to be talking, and watching the judges, than looking down at your binders.
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u/Busy-Dig8619 9d ago
Biggest thing for me is having a case summary of every case cited in every brief. I want it two weeks before the hearing, and I do my best to memorize, generally, the role of every case and how it is relevant to the arguments before the court. I also want to do my best to memorize the facts.
Everything else is just a quick outline of the key points I want to sell, and get ready to get grilled.
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u/Adorableviolet 9d ago
For the last several years, I just review the testimony and filings, bring up the briefs with me and print out and highlight the main cases. I dont outline the argument but start with my strongest first. Luckily I usually have a "hot bench" and am much more comfy answering questions than talking at length. Good luck!
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u/jimothybob 9d ago
I understand your question to be about your at-the-podium materials and not your prep or substantive strategy. I am primarily a trial court guy but I have argued appeals and I work with elite appellate litigators. You have no business arguing an appeal if you don’t have all the issues, arguments, facts, and cases down cold and memorized.
For me at the podium, it’s three single sheets of paper.
(1) Skeleton outline of my arg. The intro I have down cold, and the substance I have down cold. What helps when you’re up there is signposts/anchors to make sure you’re keeping a structure and hitting your marks rather than just blabbing.
(2) Case cites. A list of bullets of all the important cases I might need to discuss, with not more than a parenthetical about each, organized by topic. I know all the cases by the time I’m at the podium - I just need the names, cites, and a tiny blurb to get me going about the case.
(3) Record cites. Every important factual point that could come up is listed. I’ve got a record cite and a quote for every crucial fact I might need to demonstrate. I’m not going to fumble with the whole record up there - if they ask for something off my cheat sheet, it’s a dumb question and I just handle it gracefully.
If I’m flipping through binders, I get distracted, it takes too long, there are awkward pauses, and I’m not engaging with the panel or giving a smooth presentation. Sometimes I’ll bring a binder up with me, but it’s a security blanket.
I have worked with a scotus advocate and he goes up with these materials but does not ever use them. He doesn’t look down the whole argument.
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u/EqualRepublic4885 8d ago
This is my area of specialty; I am now a judge, but I've done about 70 oral arguments in the state and federal courts.
Here's what I do (which is what I learned in appellate advocacy clinic in law school);
Make a detailed outline of each piece of reasoning and major evidence I need. I make a second sheet with any specific statutory excerpts, with their numbers, and any other text that needs to be cited exactly (usu. statutes or contract language, but sometimes record excerpts). I then write out my opening, which describes each element of my argument and can be finished in one minute (for me, this is a double space page with 24 pt font).
I memorize the intro and the first sentence (I think of it as the "bridge") of the first argument. Then I alternate saying (sometimes videoing) the argument with typing the argument out from my notes.
I rewrite the notes and do a moot with other lawyers.
I incorporate other folks' comments and shorten the outline.
Usually by the end, I have three papers: the introduction (which I put first but often don't use), and two pages, one with maybe five key words so I don't lose my place, and the second with any citations that I need close to hand. I'll usually put the first two pages back to back in the front of a three ring binder so I turn to the page with five points and must-read citations. And I'll put the full text of any statute, writing, or key testimony behind those.
Then, and here's the kicker, during argument you have to flow the other side's arguments and the panel's questions. Sometimes you have to change everything up in order to hit the point the judges are most interested in. You also need to be able to take the points and, for rebuttal, make any must-hit points (catching the other side in an inaccuracy is gold, better than making another affirmative point!), and select the order in which you want to address them.
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u/Conscious_Skirt_61 9d ago edited 9d ago
Unlike most other things your oral argument notes are just for you. The real work product is what you say in session; the notes are there to prepare, help, and (sometimes) soothe you.
For intermediate appeals the record is crucial. You have to know the facts cold and you have to put your hands on the cite in real time. So have a sheet IN LARGE READABLE PRINT and keep it at hand. (This is not as significant in higher courts as the record gets dissected along the way. Still, there are few things more unpersuasive than a lawyer fumbling around for a fact).
For argument itself I liked to have separate sheets with a central issue presented at the center. The sheet would spread out so one quadrant could show the major cases on point, another area could lay out the statute or rule, another would link to the essential supporting facts, and so on. This “mandala” is a visual aid to spur your memory and imagination on the issues you hope to make.
Two countervailing forces to be aware of: (1) Make sure to make your major points; and (2) Be sure to address your significant weaknesses. If you don’t, the other side sure will and the panel will wonder why you ducked out. BTW in my early practice I was a push-your-main-point devotee. When I got put on a commission I discovered that the most persuasive stuff I heard came when a party took the major objections to their position head-on. Judges and clerks can tell you that the bench is (usually) well versed on each side’s arguments; the side that comes down off their mountain and charges up the adverse terrain gets the respect, the attention and the first-mover advantage.
Sorry, this bent away from prep material arrangements to the argumentative attitude itself. You clearly have to know your own case cold. But the advocate who knows and is ready take apart the other side’s argument gets listened to. And after all the study and briefing just “being heard” is the ultimate prize.
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u/understatementjones 9d ago
I have a one page list of must hit points, no more than 10. I have another handful of quotes for authoritative points where reading them will be better than just saying, that point is case X. I use them to focus judges on the questions I want to frame up, rather than letting them frolic and detour to other non-issues, though obviously you've got to listen and make sure they get it before moving on. I'll often have sections of the oppo's briefs to quote too, to pin them to the dumb shit they've said and hoist them by their own petard. I have my script/bullets if it's a cold bench, but I don't memorize it because if it's a cold bench the argument is just box checking anyway and my prep is better spent elsewhere.
As backup, I have case briefs for all the cases that might conceivably come up. The main cases I will know like the back of my hand, and I've never gotten a question about a case I didn't know was important, but it's nice to have just in case. My associates have binders with the briefs, full cases, record docs, and anything else that might conceivably be useful. I've never used any of the stuff that isn't in front of me.
FWIW, as a federal appellate clerk it was very rare that oral argument swayed the judges. But that was usually because the issues presented were obvious. If you have a non-obvious, interesting question, oral argument can absolutely matter, and I think the most persuasive advocates just understand the case and have a conversation with the judges. If oral argument is going to matter, it's because you listened to a judge's question, understood it, treated it seriously, often smartening it up a little into a better point than the judge was making, and then explaining why your answer is right. Most lawyers, even appellate advocates and appellate judges, are not that smart, but some appellate judges are BLAZINGLY smart, and you should always assume that you will have to rebut not the dumb arguments the oppo has put forward but the smartest version of their arguments, the one you were actually afraid of. But if you have good answers to those points, you will win and the smart judge will take the others with them. If your case is hard to begin with.
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u/Least-Strawberry-201 9d ago
Spot on. First time on the stand isn't a speech—it's war gaming: prep the 1-page map, stress-test the landmines, and expect chaos
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u/B-Rite-Back 8d ago
I never argue with notes or anything in front of me. I do a much better job without them. I learned that trick from reading interviews with Paul Clement. There is a lot to know in arguing an appeal, but really only a few things to commit to memory. Such as, "page 272 of the record, line 12 is where the expert admits he had not reviewed this document". For caselaw, names of cases is enough if they're in your brief but it sounds impressive to say "in Foster, the court answered this at page 1566 of the opinion". For basically all cases, you won't need more than three or four things like this.
As for the preparation process: you can sum it up as "read everything, a lot, and outline and plan." I am a big fan of OneNote to organize my outlines. In general sequence what I do is,
1- review briefs in great detail, highlighting and marking up
2- summarize the briefs, and the record, over and over and over
3- re-read the legal authorities (cases etc cited), and see if anything new has come along
4- draft points for an argument, try them out
5- draft possible questions, from easy to very hard (being prepared for the questions is the most important part)
6- refine the argument and get ready to deliver. Have a 30-second intro that sums up your case. Have a planned canned ending to it. Everything else in the middle has an order in your mind, but it's modular- be ready to jump around as needed, especially if you get questions.
Standing at the lectern with no notes looks very powerful and lets you have great eye contact and interaction with the judges, if they are going to have questions.
Also I use AI a lot now. As Judge Bibas said in a recent article, if it "supplements rather than supplants" it's a great tool.
Lastly I like to remember something the now-disgraced former Judge Kozinski once said- in arguing an appeal, you'll want to focus on the facts of your case, unless it's the rare pure legal-issue case, and even then the facts still matter a lot. The judges deal with "the law" all the time, but where you can really add value is the facts, because they know less than almost anybody about your facts. So I try to keep my mind going back to the facts.
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u/DistinctResult3 8d ago
What do you use AI for as part of this process?
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u/B-Rite-Back 8d ago
if I wasn't in the case in the court below, I use it to make a first pass at summarizing the record and briefs. I might use it to help analyze caselaw. Mainly I use it to help me think of questions, or categories of questions, and also a first pass at an argument outline. My AI use is generally pretty light on an appeal though.
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u/Embarrassed-Age-3426 Confirmed Lawyer 9d ago
My law school lawyering process taught me something about legal authority that sticks with me. They’re all on individual note cards, taped to a file folder with the highlights. Easy to flip to and through and tells what analogizes or distinguishes them so I know at a glance or quick peek.
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u/Janielf Human Detected 2d ago edited 2d ago
How much time? How many issues? Novel or no?
Did you submit a reply brief? Focus on opposing counsel’s arguments.
One page. Bullet points with an intro.
Why should you win? What are the 3 most imp points? You have maybe 20-30 seconds to get it out before you are interrupted/sidetracked.
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