Digesting is an art. How effectively it is done will determine not only the amount of time consumed, but also the quality of the resulting factual statement. Do not treat it as a routine exercise.
Stating facts fully and effectively is considerably difficult, but most important. Ordinarily, facts determine the law that is applicable to a case and governs the outcome. Accordingly, facts should always be developed to the full. Every effort should be made to get all the juice out of them.
The discovery of a tiny, but significant little nut or bolt may turn what would have been a defeat into a victory. Thus, digesting the record and checking the record references of each draft of the Statement of Facts should be done with great care, in order to dredge up every significant nugget, no matter how small, and to present the inferences and overtones.
Every brief needs the vital factor of organization, both in the Statement of Facts and in the Legal Argument. The best way to organize a Statement of Facts is to assemble it into compartments that are introduced by headings. Headings within the Statement of Facts makes it easier for the reader to absorb the written material and refer back to essential facts, when necessary, in reading the Legal Argument. In addition, the process of organizing a Statement of Facts in this manner compels the writer to prepare the brief with greater care and forces the writer to give adequate treatment to each introductory heading.
In most cases the facts are the. It must be drawn. All in all, the task is a delicate one-as difficult as it is important. If he is to be an advocate he must breathe life into his cause by showing, as vividly as possible, that the conclusion he urges will serve a greater cause than mere uniformity. The advocate must convince the court that his solution will result immediately in justice between the parties and ultimately in justice to the community. Each portion of the Brief devoted to Legal Argument is broken down into separate Points and each Point must begin with a good Point Heading.
A point heading is the very apex of a pyramid of argument. It should state the heart of the argument in board-brush but clear and if possible, vivid terms. A well written heading immediately informs the reader what the writer is driving at. Writing a good point heading is not easy; If too long or prolix, the heading cannot be readily understood.
On the other hand; if the beading is too short, it may be So cryptic that it may not convey the message at all. Only a middle course will really work. A heading should be as short as possible, yet long enough to be absolutely clear. It must be interesting and provocative and contain your Legal Argument applying it to the facts of the case. In developing a Legal Argument, it is best to lead from strength rather than weakness. Hence, present the strongest points first. The order may be different when background material necessary for an understanding of the points should logically come first.
Within each Point the writer must weave the principle or principles of law he is relying upon with the operative facts that relate to his Argument. A certain amount of conscious repetition of major points is often desirable. Otherwise, a main point may be overlooked by the reader.
Approach your oral argument as a conversation with, not a lecture to, the judges. Engage in an exchange of ideas with the judges and respond to their concerns. Don't read a speech to them. Be aware that at any time during your argument, the judges can and will interrupt you with questions. Judges rely on oral argument to help them pin down the issues they must . The more the judges question you, the less time you have to present what you . Judges often are visibly impatient with rebuttal, so make it snappy and make it good.
The end of each Point should contain a Conclusion summarizing the major Argument or Arguments made throughout the Brief. Often my whole notion of what a case is about crystallizes at oral argument. Standing at the lectern and simply talking or worse, reading is not the kind of advocacy to which Mr. Justice Brennan was referring. To advance the cause, Oral Argument must do the. The following list contains many of the fundamental aspects as well as practical tips that go into effective Argument:.
Not to the same degree, but to a considerable extent, the same secret is true of Oral Argument on appeal. Oral advocacy on appeal does require certain talents and inner resilience and fortitude that is not required in general- practice, or even in trial practice to the same degree. Indeed, there are many lawyers who should seriously consider letting someone else handle their appeals.
Any lawyer who is basically qualified to appear in an Appellate Court will improve the quality of the representation he gives to his client if he will take the time required to prepare his Oral Argument adequately and devote that time to the proper manner of preparation. The first and most obvious task in preparing for oral argument is in mastering the law of the case by a thorough study of the Briefs. The next task is to study the pertinent authorities. In doing so, read carefully the authorities on both sides of the case.
It is important to handle the cases that hurt as well as the ones that help. Study the Record on Appeal-The facts on an appeal are contained in one place and one place only, and that is in the record. There is no substitute for the laborious reading and rereading of testimony and examination of the exhibits. This area of preparation is the one probably neglected most of all by counsel handling appeals.
Topical Outline-After having already gone through the laborious process of soaking yourself in your case and polishing your Argument, you now need at the lectern a short topical outline of your Argument with brief catch phrases that are selected by you personally, so that they will recall to your mind at a glance the whole substance of the Argument that you want to make on each issue.
These should be printed in a fairly large, highly legible fashion on plain white sheets of paper, or typed with extra large characters, using very wide margins on both sides and top and bottom with ample spacing between the topics. This outline should contain items located in such a way that they are quite visible and available but do not distract from the substance of the outline itself.
Answer Immediately-Answer questions immediately, forthrightly and use them as hammers with which to drive home the force of your Argument. Rather than seeing them as an interruption or a delay in your Argument, counsel should, as John W. Never defer the answer to the question with the explanation that you will be coming to it later. Instead, turn the question to positive advantage, using it to further the progress of your Argument and to help in the task of persuasion.
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The function of the preliminary statement is to give the Court at the outset the jurisdictional history of the case and to tell the Court something about the general nature of the case. Huff Peter G. Since you know those questions are coming, prepare your best answers to them ahead of time. As I lay all the cards out on the floor this works great for organizing the topics you want to discuss with a witness on direct examination, too , I put them in the order that makes the most sense. Retrieved 25 July If only one side waives gives up oral argument, the appellate court will hold oral argument with the other side.
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