De Novo: A Virginia Appellate Law Blog : Virginia Appellate Lawyer & Attorney : James O'Keeffe : Gentry Locke Rakes & Moore Law Firm : VA Court of Appeals Commentary & Analysis

On October 19th from 3:00-5:30 p.m., the VSB's Appellate Practice Committee will present a free appellate CLE at LeClair Ryan's Riverfront Plaza office in Richmond. The Committee's last CLE, or "symposium," was by all accounts a big hit. Justice (let's hope soon to be Judge) Keenan participated, and shared some sound observations and advice.

I expect the October 19 CLE to be every bit as good. My colleague, Monica Monday, is again running things. Monica is a wonderfully talented oral advocate, and she also puts on a good show. [DISCLAIMER: NOT ATTORNEY ADVERTISING. PAST RESULTS ARE NO INDICATION FUTURE PERFORMANCE.]

The CLE will include a mock writ argument, which should be instructive for all. And its timing is no accident. Not only is the VSB's mandatory CLE deadline creeping up on us, but the Supreme Court will be hearing writ arguments the following day. If you're scheduled to argue on the 20th anyway, the CLE will not only provide some timely tips--it will give you a good excuse to get to town early and meet some fellow members of the bar.

Finally, although the CLE is free, we do ask that you shoot Monica an email at monica_monday@gentrylocke.com if you are planning to attend. That way, she can keep a head count and make sure that the Committee accommodates all comers.

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By all accounts, the Virginia State Bar's recent appellate symposium on oral argument was a big hit. Unfortunately, I wasn't able to attend--I was tied up at my day job, posing as a mild-mannered commercial litigator--but I've heard from folks who made the trip that Justice Keenan's talk was one of the highlights. Here are some of the key points that (I'm told) she made:

• During oral argument at the Supreme Court of Virginia, about half of the questions from the bench are designed to influence another justice.
• Oral argument changes the outcome of cases about 10% of the time.
• When asked, Justice Keenan disagreed with the statement that you can lose a case at oral argument, but you cannot win it. 
• Counsel's credibility is very important.
• Justice Keenan will prepare questions in advance for oral argument.
• In preparing for oral argument, Justice Keenan will read the briefs several times. If she is writing the opinion, she may read the briefs up to 10 times.
• She reads thousands of pages of briefs and appendices each term.

Because we are allotted so little time for oral argument, this sort of inside perspective is priceless. It allows us as practitioners to maximize our effectiveness by tailoring our approach to our audience.

What can we learn from Justice Keenan's presentation? Here are at least 5 points:

1. Prepare, prepare, prepare. And then prepare some more. If the Justices are reading the briefs ten times, you should as well. You need to know the law and the record cold.
2. Oral argument matters. It can change the outcome in one out of ten cases, and not only in a bad way. Don't phone it in. You still have a chance to affect the result in a positive way for your client.
3. But the briefs matter more. As Frank Friedman puts it, oral argument is fleeting, but the briefs linger. Justice Keenan spends a massive amount of time with the briefs, and reads thousands of pages a term. Assuming that she's remotely representative of her colleagues, we can derive two lessons from this. First, craft your briefs carefully, because they will be studied. And second, cut the unnecessary verbiage and weak arguments. Put yourself in the position of someone who has to read thousands of pages of legal writing. Wouldn't you appreciate focus, brevity, and clarity? And on the flip side, wouldn't you find repetitive or specious argument infuriating? (Related point: for Pete's sake, quit it with the needless appendix designations--the Court has the whole record.)
4. And reputation may matter still more than that. Take it from someone who heard it from someone who heard it from a Justice: credibility counts. Make a baseless or misleading argument today, and the Court will see you coming tomorrow.
5. Recognize the friendly question. As intimidating as it is on the bench--and is intimidating--the Court is trying to find the right legal answer to the question presented. Getting there is a collaborative process. You are part of that process. Sure, that last question might seem like a hardball. But in reality, it might be a lifeline--one Justice handing you your last and best chance to answer a colleague's legitimate concern. Take that chance. Don't dodge the question. Answer it directly, and swing for the fences.

Finally, many thanks to Justice Keenan for taking time out of her schedule to help educate the bar and improve the quality of appellate advocacy in Virginia. We wish her the best of luck with her confirmation. 

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Word on the street is that about thirty people, including Justice Keenan, have signed up for the oral argument symposium this Monday at the courthouse in Alexandria. Monica Monday is organizing it; I am sure that she will do a wonderful job. Contact her at monica_monday@gentrylocke.com if you are interested. Registration is required.

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The State Bar's Appellate Practice Committee has scheduled a free CLE for July 13th at 3:00-5:00 p.m. at the courthouse in Alexandria. The CLE will focus on oral argument and include an illustrative moot court. The timing is pretty convenient, because the Supreme Court will be hearing writ arguments in Alexandria the following day. And the price is right.

On the downside, the CLE is called a "symposium." I find that weirdly intimidating. Also, my toga is at the cleaners.

That said, I attended one of the group's CLEs last year. It was excellent. I would expect no less here--especially since my colleague, Monica Monday (a very experienced oralist in her own right) is organizing the event. Contact her at monica_monday@gentrylocke.com if you are interested. Registration is required.

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