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Appellate Arguments: Tips from the Trenches

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Appellate Arguments: Tips from the Trenches

In this appellate advocacy program, we explore how to prepare and deliver the best appellate oral argument for you, how to be the best advocate you can be, and how to maintain your credibility as an advocate. We address the fundamental appellate advocacy issues involved in appeals. And we focus heavily on principles of advocacy including how to be your authentic self as an advocate and how and why you should not fake it by trying to be someone you are not. We offer useful real world experiences along the way and useful tips and practice pointers so you tread carefully and safely in your appeal.

Presenters

Transcript

Peter Afrasiabi: Hello and welcome. My name is Peter Afrasiabi. I'm a partner at the law firm of One LLP in Newport Beach, California. I teach at the University of California Irvine, School of Law where I run an Appellate Litigation Clinic. And today's program is in the realm of appeals. It's called Appellate Arguments, Tips from the Trenches. Now, of course, as always, all of the views expressed here in this program are my views and my views only, they are not to be as ascribed to my law firm or the university where I teach. But nonetheless, I hope they are valuable and useful to you and let's get rolling. So you see here on the first slide, the question is where are we going today? And the big goal in this program is to give you those tips and tricks in terms of how you can be a better appellate advocate, a better oral advocate when you're actually standing at the podium doing your appeal.

   And so the big goal, of course, in today's program is oral argument preparation in both the technology-based appellate oral argument world, but also in the normal court world that we've all been used to before COVID in which we should return to post-COVID in some fashion. And so what I mean by this is that the traditional realm of doing oral arguments, of course, is standing in a room at a podium where there are three different judges and you are 10, 15 feet away from them and you are doing your oral argument. But in the post-COVID world, this has shifted, of course, primarily to Zoom-based oral arguments or another technology like Zoom, where we are using the computer as the medium that mediates our relationship with the judges and sometimes even a telephone. And so the program today will be focused really on both and how you can use both of these mediums, whether it's an actual room or it's technology, to be the best advocate possible.

   We will review the role of oral arguments historically and the purpose of them and how they can actually change the outcome of a given case. We will talk about how you prepare for your appellate oral arguments effectively. We will cover the idea of mooting practice sessions, the importance in how you can moot and moot properly to be prepared as the best advocate on the day in question when you show up. We will look at many of the technology issues that are critical now in this post-COVID world. And of course, along the way, we're going to have lots of practice pointers and some do's and don'ts that you can follow in order to have the most effective appellate oral argument possible for you. The place to start when we are going to talk about oral arguments is to recognize that this really is the last chance in your efforts as an advocate at persuasion. And this is what we can call the last persuasion arrow. And here, you see a quote from Chief Justice Rehnquist of the United States Supreme Court from his tenure.

   And the quote is as follows, "Lawyers often ask me whether oral argument really makes a difference. Often, the question is asked with an undertone of skepticism, if not cynicism, intimating that the judges really have made up their minds before they ever come to the bench, and oral argument is pretty much a formality. Speaking for myself, I think it does make a difference, in a significant minority of cases in which I have heard oral argument, I have left the bench feeling differently about a case than I did when I came to the bench. The change is seldom a full 180 degree swing and I find it is most likely to occur in cases involving areas of the law with which I am least familiar." Now, this is a really critical and important point because what it tells us, and this is true from other judges, the more you do appeals, the more you talk to judges, the more you recognize that Chief Justice Rehnquist sentiments were not anecdotal or aberration to him, they are generally accepted and true.

   And that is that oral argument can make a difference. You can potentially win a losing case, you can potentially lose a winning case, or even if you can't shift the outcome completely, you can sometimes modify the outcome in a way that even if it's not the true ideal for your client, it can still be beneficial to your client to have a somewhat narrower ruling. And this can be very, very important for clients who are, for example, repeat players in litigating things like enforceability of arbitration agreements or terms and conditions and employment agreements that affect many, many employees, a modified ruling could have massive, massive value even if technically you still lose the case. And so the key point to recognize here is, as you see from Justice Rehnquist's quote, that you can actually make a difference. And so your advocacy, your oral advocacy is critical.

   And so if we invest in it and we do the things that we have to do so that we can be our most authentic advocate selves, we actually have a chance of making a difference in a case. And that's really refreshing and valuable to know because you know now that when you walk up to that podium, it's not a fait accompli, the case hasn't already been per se decided such that whatever you do doesn't matter, you can actually swing this thing and make a difference. Now, the other thing to unpackage from his quote as he notes is that it's often the case that it occurs in areas of law where the judge is least familiar. And so our appellate judges by and large are generalists. They hear cases from criminal to civil to agency and everything in every subset of all of those. They may have come from a particular background where they had an expertise, but they hear everything.

   And so if you are hypothetically an intellectual property lawyer, and what you do all day every day for the last 20 years has been copyright trademark litigation, and you are litigating a big copyright appeal and your judges are generalists, that may well be the type of case where you as an advocate have the credibility to swing it because you are particularly knowledgeable about copyright law, which the judge, for example, may not be. And so you actually can swing a case in that sense. And so recognizing these things I think is what's critical for us to be armed up and ready so we can get going. So let's start here on the next slide talking a little bit about the history of oral arguments. And there you see a picture of Marcus Tullius Cicero and Cicero, of course, really represents what maybe the greatest historical advocate from the ancient world and was considered the finest order and lawyer of his time 2,000 years ago.

   And Cicero was praised for his success in the Roman trial courts and the skills that he had as a legal practitioner in that arena. And of course, today, the world is different and the disparity between the Roman world and modern America in the late 20th, early 21st century is obviously massive. But nonetheless, I think American lawyers, even though we may not directly emulate the style of Cicero and the great advocates of the ancient world, we can emulate and adopt and adapt many of the principles by which those advocates lived because in that time period, they did everything almost by oral advocacy. And so they learned how to be the most effective oral advocates possible. And so I think many of the lessons that Cicero has given us, which fortunately for us as advocates today are still available because his books have survived through the ages, many of those lessons in rhetoric and argument that aided him and were relevant to him 2,000 years ago really are relevant today.

   And so I would highly recommend to any of you to read either his seminal work, De Oratore, translated On the Ideal Order, or modern works that analyze it or distill it and synthesize it. And so I think some of the rules that we can take from the ancient world, the Cicero Rules from two millennia ago, that are still put particularly important today when we are talking about oral arguments involve word choice and arrangement. And I think this is one of the lessons that he gave back then is still very, very important today for us as we get up and stand at a podium. And that is that our word choice and arrangement matters. By word choice and arrangement, what I mean is we must be very, very careful about what we say and what we don't say. You have five or 10 minutes of oral argument time, and you want to be very, very careful in your word choice so that you don't unnecessarily open a Pandora's box by saying something that's just unnecessary to your case and that will trigger a judge.

   An example, of course, would be something like calling the other side disingenuous or saying, for example, the trial court clearly made a mistake in understanding the law, either of those or neither of those are probably necessary for you to win your particular appeal. And all you do is set off the judge. And because of those poor choices of words, you may now provoke a question from the bench, and now you have to sit here and explain why the other side was or was not disingenuous and you have a judge frustrated with you, and when your appeal or not will not turn on whether the other side's lawyer is behaving disingenuously. And often, it's the case on the other example, for example, that for you to win, you need to show error. You don't have to show the trial court was a complete lunatic and a buffoon, you just have to show error. And if that's the case why throw in that word clearly errored and then provoke a court to say, "Wow, maybe there's an error?" But is it clearly an error?

   And you're now involved in some wordsmithing argument with a panel of judges instead of talking about your case. And so that's an example of why word choice really is very, very important to think about. The other rule that's particularly important I believe from the ancient world for us today as modern advocates, whether we stand in a courtroom, but even more so when technology is mediating our relationship with the judges, the rules are ones that revolve around the delivery, our pronunciation, our inflection, the clarity in our enunciation of words, speech and knowledge, thinking before we speak in the way of saying word choice. But those are particularly important whenever we stand at a podium, but it's especially important if we happen to be doing oral arguments over Zoom and the software that now may mediate many of those arguments, whether they are appellate arguments or even your trial court motions you may argue.

   The technology has made it such that our clarity and enunciation is more important than ever, our pronunciation, the inflection, the use of your voice as a tool when you don't have your body in the courtroom to be present where you can use gesticulations of the arm perhaps to clarify or put a fine point on something. Your voice is the most... Your lungs have become the most important tool. And so these ancient rules from Cicero I think are very, very important today, and we should embrace them. I would encourage you to embrace them, to think about them and to use them as you prepare to be the best appellate advocate possible. So as we move along, we can recognize how oral arguments have changed over time and how limited they are today, which means we have to be more effective than ever as appellate advocates because until 1931, Supreme Court arguments generally lasted for days.

   And so if you think about that, lawyers would get up and if you have a couple days to make your case, you can wax on a length, you can say things that may be unnecessary, perhaps you trip over something, you provoke a bunch of questions on something that doesn't matter. And at the end of the day, you have plenty of time to go back and clean it up and fix it up because you had ample time. Now, 1931, the Supreme Court shifted to 30 minutes and lower appellate courts followed with that or less time. And the reality today is that most appellate courts, and I'm talking about federal appellate courts, will give you 10 to 15 minutes tops for most cases, normally 10 minutes. And this is overall the number. And so what that means is that you have got this big complex case where you wrote 100 pages of briefs and there's all these issues and all this complexity, and you have 10 minutes of time to talk about it.

   And you have three judges who have a bunch of questions, which means you have a very limited amount of time to make the points that you want to make and the points that are important. Our Federal Rule of Appellate Procedure 34 talks about when and how we have oral arguments. And under the federal system, oral arguments have to be allowed in every case, unless the panel of judges who have examined the briefs and record unanimously agree that you don't need it and it's unnecessary. For example, if the appeal is frivolous or the issues have already been decided by another case, and so they don't really need oral argument and they feel the briefs are sufficient. And so what that means on the federal side is that many, many cases, you don't even get oral argument because the court has concluded that there's really nothing you can do as an advocate that could possibly help. And so they submit the cases on the briefs.

   But if you're in that group of cases where they've allowed oral argument, then you better believe that you're showing up and you're ready to be there as a top gun pilot, because you can make a difference. This is one of those cases. Now, we can pivot here. For example, in the California state side, the appellate rules are the opposite. Oral argument's held in all appeals and it's only submitted on the briefs if the parties actually agree. And I think many states are like California. And for you as an advocate, wherever you are in the nation, if you are given oral argument time, you should be thrilled. You are in a forum that allows it, they appreciate it, they honor it, they recognize it and they see as valuable to them as decision-makers and/or mandated by the legislature. But either so, you have the opportunity at oral advocacy. And so being your best advocate's what's relevant, and the tips here today are how we do that.

   Now, why do we have oral argument? We can look here at some of the reasons for it from the American Academy of Appellate Lawyers. And they talk in terms of the value of oral argument in terms of several key points. One is to improve the accuracy and quality of the decision-making process to refine the result. And this is where oral argument can make a big difference. It may not shift between winning and losing, but it can refine the result, it can narrow the holding, it can affect the way the court articulates the rule of law it's laying down for a whole jurisdiction. And that's very, very important. It also serves as a teaching function and it provides us as lawyers and members of the bar an ability to engage with judges and see how judges decide cases, see what moves them, what affects them, what changes their thoughts on a case, the types of things that they see as being important that we may not see. And so the very active engaging in an oral argument is itself a quid pro quo teaching moment for the bar.

   And that's a very, very valuable reason for oral argument. It also provides our clients, the parties, with some public manifestation they've had their day in court. There's something troubling to our clients when cases are submitted on the briefs and then they just get some two-paragraph decision saying, "Oh, you lost," and that's very troubling for courts. And this public manifestation that they've had their day in court is a very important thing I think systemically for our clients. And speaking firsthand experience on the federal side where I've had cases submitted on the briefs, and we just get some decision saying we lost, clients are frustrated. They feel unsure and uncertain if the court even paid attention to their case, did anyone even really care? Did they look at it? Is it just being rubber stamped? I mean all those types of thoughts and feelings being left in a client's mind are terrible when the law and our appellate system and our legal system, of course, is a public good.

   And so this then gets to the civics function of just government and courts operating openly, transparently and fully for all members of the public. And so there's a whole bunch of very important reasons for oral argument. And this, of course, is why if you have it, you want to do it. Now, we'll pivot on this next slide just to take a look at the federal side in terms of how often you actually get oral arguments in your cases. And so you can see here, this comes from the federal judicial center, and this looks at the data by circuits. And this is for 2014. It's a little bit older the data, but it's basically the same today, hasn't really changed in the last two decades. And you can see here across all civil cases, for example, in all circuits, only 38% get oral argument and 22% of criminal. And then you can see it's broken down by circuits and the DC circuit, the second, the seventh and the ninth tend to give oral argument the most.

   But even there in civil cases, it's 50, 60% of the time if you're lucky. And then other circuits are a lot less, I mean you can look at the fourth circuit and the 11th circuit and the 10th circuit, which hover in the teens or 20, 25 odd percent of cases getting oral argument. And so you can see that it is certainly not always given on the federal side. And so if it is, it's a rarefied valuable experience that I hope you embrace and you're excited for, and you run with it. Now, we can pivot back on the next slide to where we began a little bit in terms of why it's important from the court side. And this is, again, coming from the same Academy of Appellate Lawyers Report, where they found that 10 to 20% of judges say that their views do change based on oral argument and critically, they don't know ahead of time which cases it will be. And so that echoes what Chief Justice Rehnquist said. And it's really important for us as advocates, because what it shows is that you can make a difference at oral argument.

   You can change an outcome and the court doesn't know ahead of time, which case it may well be, which means any case that you're standing up in an oral argument on could be the case that you have the potential to change something. So that's why this is of such massive significance to us as advocates, this opportunity at oral argument. And again, it's our last chance at persuasion and it's a non-frivolous real chance to turn a case. And so I think with that, let's get started and let's start talking a little bit more in detail now about oral arguments, how they happen, what happens and what we should do to be prepared and to be the most effective advocate. And what we have to recognize, as you see on the next slide there's a picture of the federal circuit, its courthouse with three chairs up there, you have a three-judge panel almost all the time in your appeals, on the state or federal side. And you have 10 to 15 minutes of argument and you have judges who you must remember who are these judges?

   These are people who have multiple law clerks or research attorneys at their disposal. They've had a vast amount of resources and time to work up a case and get prepared. And so they are there to ask you questions to illuminate issues that may help them. And so this means you are showing up in a forum where you will have aggressive, detailed questioning. You are not showing up to provide a speech. This is not your chance to have a teleprompter and to do some soaring rhetoric in a closing argument where you just have free rein to say what you want. And so this is a very, very important point that's lost on many appellate advocates who show up for the first one or two times in a court. They think they're there to have 10 minutes to say their peace and you're really there to answer the court's questions as succinctly and efficiently as possible while also making the key points you want to make.

   And so what that means is that rather than this be an exercise of providing a speech or a soaring piece of rhetoric, this is a quid pro quo, a back and forth, a question and answer session where you're bouncing back and forth making your points while constantly answering their questions and pivoting to make the key points you want to make. Now, one thing we have to recognize, as you see on the next slide here, is that the appellate court has a different center of gravity to the trial court. And in order to be an effective advocate, we have to maintain an awareness of the roles of the different courts. And so by this point in the process, of course, your briefs are written, your affirmative case has been made if you're an appellant, you've countered the other side's arguments, you've crystallized the arguments and your work product is all there. And between all the briefs, it could be 150-pages. But now, you have a live panel. This is your last shot at persuasion.

   And so you want to also know, as you stand up at that podium to make your argument, you want to remember who is the audience? What are the appellate headwinds that motivate this audience? And as well as this not being the time to give a speech-like presentation you may give to a jury, one's recognizing it's dynamic, it's shifting, it's a ping pong session of responsiveness pivoting making your core points, but answering the questions. And you have to be able to do that at the same time you recognize as you stand up there with such a limited amount of time that your audience is already well versed in the facts and the law. And they are focused, of course, on making law for a jurisdiction. And this is a very, very important point because your trial court is really only concerned about the facts of the case between the two people before it. There's nothing presidential about the decision, it's just who wins? Who loses? Plaintiff defendant, what are the facts? And how does this thing come down?

   Whereas now, you're looking at a court that's very concerned about how they may rule affecting 50 million people if that's as big as a circuit is. The other thing you have to be focused on is that this court is concerned about whether there was prejudicial error below, not just any error, but it has to be prejudicial. And systemically, appellate courts recognize and accept that there's a certain amount of error that occurs and they're there to fix prejudicial error it. And finally, they're there focused on the standard of review. How much deference do they give to the lower courts in terms of their decision? Or do they give no deference? And this turns on the role of the courts in our distributed system of justice. And this requires a brief walk down standards of review lane. So let's talk here about standards of review. These are the prisms by which the appellate court will look at a lower court decision, and they exist because of the distributed role of justice between our courts and our system.

   Trial courts make facts, appellate courts make law for jurisdictions. And so what this means is that the appellate courts will give no deference to the lower courts on legal questions, on questions of law, because the role in our distributed justice system is for appellate courts to decide legal questions. So if you are able to frame your issue on appeal and have an issue to talk about at oral argument as being a legal error, you are in the best footing possible to win because your audience has and will give no deference to what's already happened. They're going to make the law themselves. The flip side is that if there are factual findings or other types of decisions from the lower court that you're challenging that are not pure questions of law, those are afforded a certain amount of deference because those courts are allowed to make certain decisions and not have those decisions disturbed, absent, a really, really, really, really good reason.

   And so it's very critical that you have already used and understand these standards of review properly in your briefing, and that you certainly understand and think about them very, very carefully when you are narrowing your briefing down to what you want to talk about at oral argument. And so questions of law of, course, are de novo, there's no deference, that's the best place to be. And if you have a good legal error that you can point to, that's a good place to be focused in your oral argument. You see on the next one, clear error is the inverse. This is where factual findings have been made by a jury or by the trial court, and it's simply not enough that the appellate judge may think, "Yikes, if I had heard all those facts, I would've come to a different conclusion." That's not enough. They don't get to reverse just because they feel that, they have to reverse if there's a definite and firm conviction that there was an error.

   And so you will see quotes all the time where appellate courts say, "Had I been the jury, I would've agreed with the other side and I would've come out the other way." But that's not enough for me to reverse because reasonable minds can differ on this, and so there's no way for me to say that it was definitely and firmly wrong. And that is a critically important point to understand when you're getting up to do your oral argument because if your argument is that you just don't like the way the jury found the facts, you're saying that the jury concluded the light was red when your client went through it and you think that it was really green and there was some evidence it was green and you want to go up to the appellate court and say, "It's just unfair. There was evidence it was green." The appellate court's going to scratch its head and say, "I don't know what to do with that. There was evidence it was green, there was also evidence it was red. And the jury agreed with the evidence that it was red."

   "What do you want us to do?" We can't just undo that. So you have to make sure you are standing on terrain that you can win on. And that you're having an argument that doesn't ignore the standard of review because when you show up and you ignore the standard of review and you try to argue anew something that can't be argued anew, not only do you have no chance of winning, but you've also now telegraphed to the court that you don't know what you're doing in terms of the applicable appellate rules. And this creates problems for you and your credibility. Now, we also have abuse of discretion as a standard of review and abuse of discretion review is generally reserved for a whole host of trial court rulings that are based on the trial court's expertise really being in the trenches so to speak, things such as how many days of trial you get, how the trial is divided up, how long per witness, how much time you've been given for discovery.

   Those types of questions are questions that are vested in the discretion of the trial court. It gets to make those determinations. And those will be deferred to and they won't be reversed unless the appellate court is really convinced that the lower court's ruling was wrong, is convinced that the ruling was an abuse of discretion. The court simply went beyond the bounds of reasonableness and went too far in terms of how it ruled. Of course, that means it's a very hard thing to overcome and one has to be cognizant of that. Finally, we have arbitrary and capricious, and this is generally reserved for agency decisions. It's highly deferential, both because the agency may well have made factual findings, but also because within our distributed system of justice among the three branches of government, there's deference given between the judicial branch to the executive branch and it's agency rulings.

   And so basically, agency rulings get affirmed if they are at all irrational or reasonable. And they're reversed only if they're arbitrary or capricious again. And so you can see here, the key point is that appellate courts are not giving deference on questions of fact... On questions of law, sorry. And they are giving huge deference on questions of fact. Legal areas are their area of domain and so they will hold onto that, but factual areas belong to other courts and those are going to be given some deference. And so for you as an appellate advocate, arguing legal errors is the best terrain for you to be on as you have the greatest chance of winning. But arguing factual issues may all you have. And so if you do that, that's okay, but you just have to be cognizant of the hurdles you're confronting and how you can signal to the court that you're aware of them and how you know how to manage them so that you can maintain your credibility and not doom your appeal.

   And this, of course, now brings us to credibility. Here, we see on the next slide the issue of appellate credibility. And this is a quote from U.S. Supreme court justice Robert Jackson, and I think it really perfectly encapsulates one of the fundamental issues that's relevant for you as an appellate advocate in terms of your credibility. And this is true for oral advocacy at the appellate level as well as if you just back up a step and think about the issues you're presenting in your written submissions also in terms of your briefings. And so here's the quote. "Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at a lack of confidence. Multiplying assignments of error will dilute and weaken a good case and will not save a bad one."

   What he's saying obviously is that don't throw out arguments without explaining or developing them, and don't just throw anything and everything out there hoping something sticks. That approach fundamentally damages your credibility. It shows that you lack confidence in anything. And so it dilutes the good arguments you do have. So if it's the case that you have only really one or two legitimate arguments, make only those one or two and just be willing to drop a certain number of arguments. And so this is something that's often very, very difficult for lawyers who want to argue every point. This is our nature. We want to argue every point to the bitter end. But you have to, in order to have appellate credibility, make very tough decisions and decide that even though you may have pressed and feel that you were victimized by the trial court in five different ways below, you may need to just figure out what are the best two or three and then drop the other ones and let them go. And that's just the way it is if you want to maintain appellate credibility within this rubric.

   And so this rubric actually translates in my mind to a chart, and you see it here on the next slide, I've called it the Currency of Credibility Chart. And it's for you to really visualize what Justice Jackson is saying with this idea of appellate credibility. And you can see your assignments of error and then the receptivity to there being an error. And the greater the assignments of error, the less receptive the court is to the idea that there's an error that exists. But the fewer assignments of error, you have a greater chance of having receptivity to the error. And that's just basically a visual way of understanding and seeing that. And of course what sits beneath this idea that you may be frustrated by it, you may like it, you may dislike it, it doesn't really matter. It really is truth I think in terms of sage appellate advocacy. And what sits beneath it is a certain amount of just basic, for lack of a better word, political realities.

   And if you stop and think about the way courts operate, it will illuminate at some level why Justice Jackson has said that. And that is that the appellate courts will not, as a matter of systemic legitimacy, assume that the trial courts are all just bumbling idiots who can't do anything right. And so when you are saying that the trial court couldn't do anything right, you're charging against one of the major headwinds of our system which is built around the idea that people error on occasion, but by and large, they're doing things right, they're working hard to get to the right result and they're doing a good job. And good people have become judges and it's not just this lawless random world of show trials. And so that itself is a major policy plank for why courts have a harder time sustaining the idea that the trial court couldn't do anything correct and got everything wrong and is just a bumbling Inspector Clouseau like fool.

   And so that is part of it. The other part of it is if you just stop and think about the reality is that these appellate courts review the decisions of these trial courts all the time. And so they see these trial judges in terms of their decisions all the time. And they routinely affirm them because the data shows that on the civil side and the federal courts at least, around 90% of cases get affirmed in some sense. And so what that means is that they routinely see these courts and routinely affirm them. So they know that they're not bumbling idiots. And then the most practical one, of course, is they just literally know each other. They hang out at judicial conferences or their friends, and so they're not sustaining the idea that the people are completely clueless and incapable. And so those headwinds actually illuminate why it's very important to recognize that the pitch you're making to the appellate court is that the trial court made a mistake here.

   It's a type of mistake that can be made because the law is very complicated or because they were busy and didn't get the facts right. It's an error to error as human, that's okay, move along, right? That framework is the right framework in distinction to the framework being one where you've been victimized by a judge who can't do anything right and gets everything wrong, because that itself is challenging our currency of credibility. Now, how do you do an effective argument? So let's turn now to some of these specific issues with oral arguments, both in all ages, but also in the COVID age, and get into some nitty gritty in terms of issues with respect to oral arguments. And so one of the things you want to do immediately is have the panel's attention quickly before you get interrupted, and you will be interrupted because they have questions. And generally, you get 30 seconds or a minute to lay out your framework and start making your argument before you get a question. And that gives you a great opportunity to have the panel's attention quickly.

   And so what do you do with that? Do you stand up to the court and do a long wind up and quote the U.S. code or the statute to them? Or do you just explain why you win? And I would submit that you should explain why you win. Reciting the law and quoting what the statute says or quoting the holding of a case is something that the court's already there with you on. They have multiple law clerks, like we said before, they have worked up the cases themselves, they know the law. And so what you want to do is be immediately out of the gate applying the law. And that means you explain why you win. "This court should reverse because, the trial court aired when it did," blank, and explain it. Also, in order to give an effective oral argument, you want to be ready for questions, but you also be want to be ready for no questions. And there are times when you get a no question panel, and this is very, very important.

   And brevity is very important in your oral arguments, but you may well have a case where there's no questions. It's happened to me once or twice in my career where there were simply no questions. And the best thing you can do is be ready for that by knowing what are the core points you want to make at your oral argument and being very comfortable once you've made those points sitting down. So if you have a 10-minute clock and you can say everything you need to say in five minutes, then submit at the five minutes and don't say anything else. And another way of putting this is don't fill your time with words just because you have the time, because what often happens when you speak unnecessarily is you've made your core points and then you just want to fill that empty void, because you're a lawyer and you've got to keep speaking, and you end up saying something that then provokes a question and provokes someone to say, "Wait a second, isn't there a real problem now with what you're saying?" Because you've gone too far, you've said something unnecessary.

   So when you prepare for your oral argument, prepare, prepare and prepare and be able to figure out if you can make your points in far less than the time you have allotted. You must be able to. If you can't, go back and prepare more. If you tell me, "No, no, no, my case is too complicated, it can't be explained in 10 minutes," what I would say to you is what I say to my students all the time which is, "Yes, it can. Every case can be explained in a few minutes. And if it can't, it's because you haven't truly distilled your case to its fundamentals, you haven't narrowed down to the core root issue that you need to convince this court to win on, and you're still trying to do a full recitation of your briefs which is what you shouldn't be doing." So this is done in the process of preparing and preparing vigorously by focusing your argument in terms of what you want to do. So now, let's do a practice pointer in terms of how exactly can you get that attention and explain why you win out of the gate?

   And a good way to think of it and a good rubric to use, and this is the rubric I tend to use in order to focus myself as I prepare my case for oral argument, is to be ready to say the following. I mean get up and say, "Good morning and may it please the Court. My name's Peter Afrasiabi, I'll reserve five minutes for rebuttal. This Court should reverse because..." And what comes after because, of course, turns on your case, but it may be one reason, it may be two reasons. But you give a summary. "This Court should reverse the copyright grant of summary judgment the defendant because there were enough fact issues here showing that the artwork was original. The Court should also reverse the trade secret grant of summary judgment because the trial court aired when it concluded that these trade secrets lacked any independent economic value. As to the first issue, the matter was original because there are four pieces of evidence in the record, which have to be construed in the light most favorable to us, which make it original."

   Piece one, piece two, piece three, piece four, you get the point, right? That was all done. If you go back and time it, I probably did that in 30, 40 seconds off the cuff just thinking about one of the appeals I'd done. But what you've done in that framework is you have very succinctly zeroed in on what is the very exact root issue that requires reversal for you to win? This originality decision and this trade secret decision, and very specifically within the broad realm of copyright, the sub-realm of originality, very, very specific, you're focused now in on what the evidence is you have and what the court should be focused on. And so this is critical because what you've done for the court now is distilled your case down to what you believe the court should be focused on as the core basis for reversal, even if there's more in your briefs.

   And what you've done as a result of that is given yourself a huge credibility boost, because you have recognized that even though you may have three other issues in your briefs that you focused on in terms of error, these are the two root ones that are worth devoting 10 minutes to. They're the most important ones. And so that currency of credibility thing, here it is again. You're now winning on that ground. But the other thing that's very subtle and very important here is that you've defined your playing field. By telling the court these are the two reasons you should reverse, and outlining them very succinctly and then turning to the first issue and going, what you've done to the court is told the court that, "I'm here as an advocate today in my appeal and I want to talk about these two things. And issues three, four and five that are in the briefs, I don't think they're worth talking about."

   And I will tell you experience, I've litigated over 150 odd appeals probably, myself and with students in my clinics. 95% of the time when you define the playing field that way, you will not get a question on the other issues. The court just says, "Okay, swipe away," and they forget about issues three, four and five, and they focus in only on what you want to talk about. And that is useful for you because in this limited resource of time you have at oral argument, this gives you the best opportunity to have the most time focused on what really matters. And so most of the time, that's how it shakes out with the court when you do that. The second value to this is that by taking off the table certain issues is that you've made clear that you recognize that the narrowest basis for you to win are these issues you've given, and now you've got the court focused on them. And so you can have a dialogue on that terrain. And that's really, really valuable for you.

   And so I find this rubric is very important. If I cannot fill in that blank after the word, "Because," on this slide in a sentence or two, then I go back to the drawing board and I really try to figure out what is it am I missing? Why am I talking at too high a level? How do I distill this even further? How do I peel the onion back more? And the practice is in doing that to get your case down to its narrowest form. Now, the way not to do it in my opinion would be to get up and say, "Good morning may it please the Court. Peter Afrasiabi, I'll reserve five minutes for rebuttal. Your honors, under the Copyright Act, Section 101 says quote," and then start quoting a statute. That I think is a mistake. And what you see when that happens is courts routinely tell lawyers, "Counsel, we know what the law is, what's your argument? Get to the point."

   And so what you do by that long wind up, and we all remember from law school the IRAC, issue, rule, analysis, conclusion, our writing is issue, rule, analysis, conclusion, we take refuge and we feel comfortable when we have cases and statutes to quote in our rule section. And that's fine for our briefs, obviously, it's important. But at oral argument, you really need to think about that IRAC concept and get down to the A part, just the analysis, just the argument. Why do you win? And so I would highly recommend using this as a rubric in order to be most prepared for oral argument. Now, the other practice pointer that I want to talk about is that the messenger matters, and this is you. You're the messenger. And what I mean by this is you have to be your authentic self. Don't try to be someone you're not. And I think this is a very, very critical point in oral advocacy. It's a point I teach in my advocacy classes. It's a point I write about in advocacy literature I've written or a book I've written with one of my law partners.

   And this be yourself point is built around the following idea, and that is that public speakers often fail and they often seem inauthentic because they're afraid. They're afraid to mess up. They're afraid maybe they're going to be judged. And at root, they're also afraid sometimes to be themselves. And so they end up trying to build up walls around themselves designed to protect them from those issues, and they pretend to be what they think the audience expect or wants them to be. And so they may use a different vocabulary, a different gesture. They focus on their notes. They look at the forehead of the audience rather than looking at the audience in the eyes, these types of things. And they often try to be someone they're not. I am not Tom Cruise in A Few Good Men. And if I try to behave that way, I'm not being my authentic self. I'm stretching myself beyond my natural tendency as a person in terms of advocacy. And it comes off fundamentally as inauthentic and is discerned all the time in my experience by judges and juries.

   And so I think what one has to recognize is we don't have to become some idealized version of what we think the ultimate order is. We all can be the ultimate order by being the best version of ourselves. And so what I always teach when I teach advocacy is that you can't be charismatic and you can't connect with your audience unless you truly break down the walls that stand between you and your audience completely and you be completely yourself. You don't pretend, be who you are and be only who you are. Use the language you use, use the mannerisms you use. Don't be afraid to show some amount of emotion, but don't fake it. Jurors, judges see through it and critically here, whatever is about you that you think makes you not that ultimate alpha version of an order, it's not true. You can still be the ultimate version. I've had students with stutters or students who are incredibly shy and uncomfortable as public speakers, and that's okay. We don't have to somehow shed the stutter, shed the shyness and become an extrovert. We're not going to do that. This is who we are.

   You can take those and become the best version of yourself and be an incredibly moving advocate even if you're not what you think. And so here, I'll give you an example of one that was truly a moving example I experienced where I had a student who wasn't even sure she wanted to take my appellate clinic, because she was not a public speaker. She hadn't done any public speaking, was incredibly shy and introverted and didn't feel comfortable talking to judges. And I told her, "No, no, you can absolutely be an incredible advocate even if you are shy, you're introverted. You're going to be a little more quiet and contemplative. You won't be what you think an advocate should be on TV, it's okay." And she partnered up with the alpha moot court partner on the team who was the pound the chest, Tom Cruise in A Few Good Men type thing. And we worked up a case, we get to oral argument and the alpha male gets up and does his oral argument thing and did a perfectly good job.

   And the panel was incredibly combative and aggressive and he was combative and aggressive back and forth, and they went back and forth, back and forth. And he went toe to toe in that brutal questioning and was aggressive back himself. And it ended in a bit of a stalemate, right? Everyone's just arguing over everyone and that was how it is. And she then got up and was quiet, but very, very calm and very confident in terms of what she had to say, but was quiet. And the panel had some aggress of questions and she calmly and quietly answered them. And it was the most remarkable thing to witness because she was mesmerizing in terms of being really a quiet, introverted, calm advocate. And the panel of judges who had just been in this combative, aggressive mode, after poking her a couple times and realizing that she wasn't fighting back on their terrain and she was very firm, but very calm and quiet also in her demeanor, I've never seen anything like it, literally the judges sat back in their chairs, rubbed their chins, listened to her and just started taking notes.

   And I was staring at her genuinely in amazement thinking, "I absolutely myself, even as a professor in the class, would not have done a better job as an oral advocate in that case at that time." And she sucked all the oxygen out of the room and she was the center of gravity. And the court was actually taking notes on what she was saying because she was her most authentic self as an advocate and she wasn't trying to be someone she isn't. And so I think these points that you see here on the slide are really, really critical, and I think that story's really useful to recognize that we all can be phenomenal advocates. We don't have to be idealized versions and try to be something that we're not. So again, it's just some of the bullet points that distill from all of that is that emotion's critical, but you have to use it very carefully to win arguments. You can't get up and be over the top. The other key point is that a board decision-maker is a disaster for you.

   You have to have an argument that's viable, that makes sense, that's not so deep in the weeds that no one can even understand it. And also, here's another important point, delivery is not a substitute for substance. You can't just get up and think that you can show boat this thing. And by the same token, substance alone can't be the end of your advocacy. But substance is critical and delivery is important, but you can't over-focus on either to the exclusion of either. And again, as we said, connecting with the audience, being yourself, we've already talked about that. And one of the points that I think is relevant there is making eye contact, being comfortable making eye contact with the judges to talk to them. And this is true, I believe, for your jury work too, to look at your jurors as opposed to looking over them and looking past them. Don't waste your audience's time, brevity. I think that's a very important point.

   This is why I gave you that prior slide in terms of how you get to your point quickly so that you don't waste your audience's time and you fundamentally get to the issues quickly. And I think all of these tools help you become your most authentic self. And so with that, let's shift to the next slide and talk about in the technology age of COVID, what are some of the losses and how can we overcome these using technology? And so some of the issues are these lost visual clues that you can get when you see judges in person during oral arguments that make a big difference. And these are lost a little bit when you only have a video screen to look at and to try to discern ahead on a screen. You also lose this ability to see whether people are processing your argument the same way, how the panel may be really even interacting with each other when they're asking questions and one's nodding or looking at them going, "Yeah, yeah, I agree with you," that type of thing.

   All of those data points that flow rapidly give us the ability as humans watching it to make minute split second decisions about what's going on? Where's a better place to lean? Where should you avoid? All of that, it gets lost a little bit, those physical indicators that impact the give and the take of the argument and the conversation, the clues that let you know where to go, where not to go, those are all lost a little bit. And so I think this has ramifications for when you're using technology as the medium to bridge you and the judges, and we have to then figure out how to work around that and how to deal with it. Now, one of the things that comes up early and I hear from folks is, "But wait a second, this is great. I just do less to prepare and just set everything up as I want to. I've got a conference room, I'll write up, I'll want my notes on the wall."

   "I'll stick them on the wall. I'll have everything written up. I don't really need to be prepared. I have all the paperwork there and I'll just figure it out on the fly more," as opposed to when you show up in a courtroom and you don't have all those crutches at your disposal, you have to prepare more. And my answer there is that, "No, you have to be as prepared as if you didn't have those crutches, even though you do have the crutches. You have to be as prepared so that you're able to give the best oral argument possible." And this is because that real time multitasking in a dynamic oral argument when you're getting multiple judges asking you multiple questions at the same time, it certainly does allow you to use those new tools that you have that you don't have, like whiteboards and notes and stickies on the wall and all that stuff that you can do to have stuff at your disposal, it's great and it's awesome to use.

   But it's also not easy to use all of that effectively when you're having to work in real time with this dynamic back and forth. And so I think the way to be able to manage the reality of the fact that you are showing up for a dynamic question and answer session is to be as highly prepared here as you would be ever. And so here are some tips in the technology age. Do not skip on learning your record just because you can lay everything out in front of you. Know your record, know the law, know your arguments really well. Don't skip on learning the law either just because you can print out the U.S. code or the statute or the case law and put it in front of you as a secret crutch, you still need to know the cases to be able to have a dynamic conversation. You should be able to have a conversation looking at your camera and your screen without ever looking at anything else the same way you do in a real oral argument.

   And I think the key thing here is to not to think that you can simply set everything up as an alternative for preparation. Instead what I would say is consider the fact that you have all these new crutches at your disposal and figure out how to use them effectively so that they can actually aid you to make a better oral argument and to be more comfortable, but not to make it worse. And one of the things to keep in mind here, and this came up early as we started in this technology age of oral arguments, is how does ambient noise work in your physical setup? And one of the things that becomes very clear is that if you are sitting at your conference room table or standing at your conference room table to do an oral argument, and you've got all your papers and notes and books and folders lined up everywhere on the table in front of you, the moment you start rifling through them, it creates a staggering amount of irritating ambient noise, the shuffling.

   And so you want to be aware of that and think how you're going to use it. Maybe you use an iPad that you can scroll with your finger on, or if you're going to be having a bunch of paper, I'd recommend put down towels on the table so that your paper is on towels, so at least that when you're moving the paper, it tends to heavily minimize the ambient noise that gets picked up. Now, what else do you want to do whether you're in your home or your office as you get ready? You have to always review your record and be prepared. You've got to know your record. You have to know everything as if you are there in person. There's simply no way around it. But one of the questions that comes up is where should you do it? Should you do it in your home? Or should you go into your office? And what I would say is location, location, location, on the next slide as you see, matters. You need to be, no matter what, somewhere that's quiet, that's not going to have ambient noise.

   So if your home office is fine, do it there. If your bedroom or kitchen's fine, do it there. But be aware that you need to be very, very careful that you don't have people turning on faucets. You don't have dogs barking. It's not trash day where there's a huge amount of ambient noise coming from the outside. And so you want to be aware very, very carefully of those issues, because this ultimately is the Top Gun event of persuasion and advocacy for you. There isn't margin for those types of errors and so you need to be on top of it. Now, here's what I'd say. I mean one of the thing that I think is really, really important in terms of ambient noise, I've outlined some of them, but another one to even think about, and this happened to yours truly, is Siri. I had my Apple Watch on. I had laid out towels. I was fully organized. There was no ambient noise. This was just going to be perfect. And I had thought about every little detail.

   I was doing my oral argument and I had my Apple Watch on and I said something during my oral argument. And somehow, it triggered Siri. And I don't know why, but those of you with an Apple Watch know that every once in a while, something you say somehow triggers Siri. And so Siri came on and that was a problem for me. So even that now, I'm even careful. I don't wear my watch anymore. The final issue I would raise is this issue, and that is do you stand or you do you sit when you do an oral argument? And what I would argue to you and I would submit is I think it's very important to stand. So all my oral arguments that I've done during the COVID age, I've probably done, I don't know, 5, 7, 8 of them in the appellate courts in the last year of COVID, I've done them standing. I stand and I look at the monitor as opposed to sitting. And I think this is not scientific obviously, but there's a reason I think that many singers sing while standing.

   And they don't sing as well sitting as they do standing. And I think that's because sitting tends to restrict your airway and it prevents you from getting your voice out as smoothly as just standing. You have this ability to deliver better. And now, our delivery is all we have. And if you do that yourself several times, either talking or singing, sitting versus standing, I think you recognize it a little bit. The other thing that I think is important is that we as lawyers have historically and always do our arguments standing up. I mean every time we go to court, we stand at the podium and we argue to the judge and it's our comfortable way of arguing. And I think standing is a better way to deliver an argument. I think it allows you to use your body more and gesticulate with your arms a little bit more. And it's the more natural way to do it. And so that's my non-scientific pitch for it.

   But I do think that even though this may not have been peer reviewed or double blind studied, I do think there is truth to the fact that you are better off being the most natural advocate that you're used to being, which is a standing advocate. And so I would suggest and submit that it's valuable to continue with standing even though in your home and even though you could get away with sitting if you wanted. Technology and the mooting practice. And so this topic now I want to talk to you about is the real importance of moot courts and moot court preparations. And I think it's really, really valuable as you get ready for your oral argument for the court to do a moot court and to do a few of them. Do them with your law partners, if you're solo, get a lawyer friend, reach out to someone you know, there's all people you can often find who are willing to help. I help other lawyers all the time myself.

   And do your moot court, take questions, get peppered with questions and figure out what works, what doesn't and how to refine your argument and get it narrowed. And you do that a couple times and you very quickly zero in on some things that you're doing wrong and some things you're doing right. And the other thing, again, I would come back to is that you should figure out how to do your entire argument in substantially less time than you have allotted so that if you don't get any questions, you make your points and you sit down and you're done. The other thing that I would strongly recommend if your client has the resources to really prepare you is something that I do with my students all the time, and that is after several moot courts, I have my students argue the other side. They have to get up and be an advocate for the opposing side on the opposing side's brief and really spend some time thinking about if I were the advocate on the other side, what would I say? What would I do? Where would I go?

   And that's immensely valuable, not only to make you recognize and remember that everyone has something reasonable to say here at oral argument, so that you don't drink the Kool-Aid, so to speak. But it also helps you see the reasonableness of their arguments, the strengths of their arguments, where they may focus. And that helps you recognize and zero in a little bit on how you can shore up some of your arguments a little bit better. So I think if you really get focused on arguing the other side by being a genuine advocate for the other side as opposed to being dismissive of their arguments, because you think your points are better, that helps you zero in on your weaker points and it helps you be far more prepared as an advocate. And I think that's highly valuable. The final point I make here when we're talking about technology stuff is make sure ahead of time you learn how your court operates.

   All the courts now, when it comes to technology, oral arguments have websites, or they have court officers who in the week before oral argument will work with you to make sure that your technology's working, their technology's working so you don't have any snafus on the day. And I think that's really, really important. This brings us to our last couple of slides, and these are some do's and don'ts for oral advocacy. And these are do's and don'ts, the first slide is ones that apply in all times, and that is answer directly, do not give evasive lawyerly answers to try to redefine the question. This is number one do and don't I think. If there's a difficult question you have and you may not like the answer, you have to be able to give it. So you've got to be able to say to a yes or no question, "Yes," or, "No." And then you can explain why the answer may not matter or why the question shouldn't matter.

   But evasive answers where you try to redefine the territory and not answer a direct question always provoke judges and damage your credibility as an appellate advocate, and end up burning up time off your clock. So be willing to say, "Yes, your honor, that's true. However, it doesn't matter because under this case, your question is not relevant," or whatever the thing may be. You should also know exactly what you want the court to hold and you don't want to be too general. So you don't want to just get up there as an appellant, for example, and say, "Well reverse because we should win." You want to know exactly what you mean. I mean is it being remanded? Are there directions? Is there going to be more discovery? What exactly is going to be binding the court on remand? The other thing you want to do is answer your questions and very comfortably pivot back to your point you are on or segue to a new point.

   But what you don't want to do is just having been making your oral argument, you get a question on a different topic, you answer it and then you just stand there staring like a deer in the headlights at the court waiting for another question. Answer the question and immediately pivot back to where you were, finish up the thought you were on, or if it's necessary because of the question to segue to somewhere else, segue. Think about the narrowest basis to win always, that's really important. Remember the standard of review that you're focusing your argument through that, you need to maintain your credibility at all times. So much of what we've talked about today is built around maintaining credibility. And of course, one of the things that you can do to damage your credibility is to mislead on fact or legal sites. The other important do is to listen to the question and let the judge finish before you answer. When the court asks a question, you stop talking, listen before answering.

   Interrupting the court is a disaster and it's a disaster in all times, it's especially a disaster in the technology age because then you end up really burning even more time off your clock. So even if you're making the most important point, and it's a brilliant point, and then you just get interrupted with a question, bite your tongue. I know it's hard at times, you've got to bite your tongue. Know your argument, don't read from a prepared statement. You have to be able to get up there and not give a speech, but to know your argument, to be able to discuss your argument, make your argument and to do it dynamically where you may be pulled away with all sorts of questions on different topics, but then you can pivot back and come back. And when you're done, reserve your time for reply and submit if you're the appellant, do not talk just for the sake of talking. Now, the next slide we'll finish up briefly. These are some do's and don'ts to think about when we're using technology.

   Ambient noise sources, you heard me, don't leave Siri on. Mute when you're not on. One of the things that's important is to do that when you're not up and speaking, make sure you're on mute so that if you're talking to someone or your phone rings or whatever, or you're just making ambient noise, that's not there. The other recommendation I'd have is to pause a little bit longer after major points just in case there's a question, because there can be even a slight lag in time over technology when you're talking. The other thing I think I would recommend is that for technology ones is I would say speak slightly slower and enunciate even more just to make clear that the technology is reaching them. We've already talked about standing and sitting. We've talked about towels. We've talked about respecting the court. And the other thing and the final point I would land on here is have extra vigilance in listening for the judge's voice.

   If you listen to yourself exclusively and you pay attention only to yourself, you will miss the court when they're interrupting you to ask a question, you'll frustrate the court. So you need to be hypervigilant in listening for the judge's voice. And I will tell you it's a little bit harder to do with technology when they ask you questions than when you're in a courtroom because of all the logical reasons. So just be extra vigilant there. So this brings us to our conclusions today, maintain fluency in the standard of review that governs your appeal. I think that's one of the most effective ways to maintain your credibility out of the gate. Have a succinct approach, be narrow and narrow in on what matters with the practice pointers we've given here. This also goes to credibility. Do moot courts with your partners or others beforehand. Keep in mind the do's and don'ts we've talked about here today and the importance of staying on top of them.

   And ultimately, this is going to lead to an exciting engaging experience. I think it's one of the most exciting, fun things we can do as lawyers is an appellate oral argument. It's absolutely fantastic and fun. And so remember, be your authentic self as an advocate. Remember my story, no matter who you are, no matter what you may think about your advocacy skills, you too can be an absolutely fine oral advocate. With that, I hope you have a wonderful day. And if you have any questions, as always, feel free to email me and reach out. Look forward to talking to you. Thank you.

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