Judge Andre M. Davis recently gave seven tips on oral argument during an ABA panel workshop entitled “Effective Oral Advocacy: What You Really Need to Know.” Judge Davis was formerly a District Court Judge for the District of Maryland and now serves on the Fourth Circuit Court of Appeals.
His tips and the rest of the workshop are in Appellate Issues from the ABA’s Council of Appellate Lawyers.
Judge Davis broke his tips down into three negative ones and four positive ones.
On the negative tips, he warned advocates against
- reciting a prepared speech
The remaining tips suggest that advocates
- respect the court, opposing counsel, and the clients
- retreat from points that are lost
- recover by offering a different perspective on points that seem lost
- review the record and standards of review
Of these suggestions, the hardest one for me is to know when to retreat and when to try to recover. In hindsight, it is easy to back down from points that are lost and recover from those that seemed lost but are winnable if pitched differently. It is tougher when you can’t tell going in whether the point is lost or only seems lost.
During one of my arguments before the South Carolina Supreme Court, Chief Justice Toal made it clear that she was not buying a point that seemed to go over well with some of the other Justices. Because some of the Justices seemed receptive, I pushed back and finished the thought before moving along.
The decision did not ultimately turn on the point one way or the other. But I did not know that. Had I known, I may have handled it differently. And I would be making a living in Vegas.
Does anyone have other tips to add? Please leave a reply or reach me at here.