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

In Part III of our continuing series, former Supreme Court of Virginia clerk Tommy Strelka shares some things he learned during his recent clerkship. Today, Tommy attacks considers oral argument:

• This ain’t no jury trial. It’s just you, the other attorney, and the Court. And though there may be several Judges or Justices, they are not a jury. So for the love of Learned Hand, don’t speak to them as if they were. In appellate practice, you are not presenting your case to people off the street. You will be speaking with highly educated and experienced legal thinkers—and you won’t win any style points for rhyming or reducing your themes to clever catchphrases. Be a professional, not a showman.
• Be respectful. Respect the Court by not wasting time on things outside of the record or irrelevant to the points on appeal. Do not argue with the Justices or refer to them familiarly. You may respectfully disagree with the Court and (hopefully) produce points to bolster your argument, but do not spar with the Justices. Never interrupt a member of the Court, and always try to answer his or her questions as specifically—and strategically—as possible.
•  It’s called "rebuttal," not "repeattal." Rebuttal is a free shot at the bad guys. Take it, and do some damage. Do not repeat everything you said earlier with some different adverbs. Crush your enemy, see him driven before you, and hear the lamentations of the Court. By the time you get to rebuttal, the Court already knows your position. Take the opportunity to point out the weaknesses in your opponent’s. Did one of the Justices ask a question that the appellee couldn’t answer? Go ahead and answer it. Did opposing counsel gloss over a weak spot? Remind the Court--or better yet, attack the weak spot. Did the Court hint at its concerns during the appellee’s arguments? Use your remaining time to address them. This is your opportunity to poke holes in stab giant, blood-gushing wounds in your opponent's contentions. Make the most of it.

In fairness to Tommy, I have edited this entry quite heavily. The original contained descriptions of bloodletting on a near-Tarantinoid scale. If nothing else, Mr. Strelka has certainly put the "arg!" back in "oral argument."

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We're back with the second in our series of guest posts from recent Supreme Court of Virginia clerk and avid water skier Tommy Strelka. Today, Tommy shares some more things that his clerkship taught him about brief writing:

• Ditch the hyperbole. Your appeal from your client’s sixth conviction of shoplifting probably does not amount to “a case of extreme jurisprudential and meritorious weight.” Don’t oversell. You will lose credibility.
• Use the correct number of assignments of error. A petition for appeal with forty-five assignments of error is either a petition for appeal from a death penalty sentence or it is a poorly written brief. Most cases on appeal have only a handful of truly relevant and contested issues of law. You can obscure the main thrust of your argument by addressing far too many issues.
• Craft your assignments of error with care. You define the scope of your client’s appeal. When you submit an assignment of error or question presented, you are effectively setting the bounds of your argument. But be sure not to paint yourself in a corner. Every word matters in an assignment of error. Ask yourself, “What is the real legal issue at the heart of my case?” Boil it down to a single statement and write it down. If you knew nothing about this case and another attorney read this statement, would that attorney still understand the argument of law?

I'm enjoying Tommy's guest posts, and I hope that you are as well. Clerks have the ear of justices, and they are a primary audience for our briefs. It helps to know what they find persuasive and annoying.

Also, I like the goofy pictures he comes up with.

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Welcome to De Novo's inaugural guest post. Today, Tommy Strelka shares a few things that he learned during a recent clerkship with the Supreme Court of Virginia. This will be the first of several visits from Mr. Strelka, who has promised to provide us no fewer than ten--TEN!--tips.

Tommy is currently a trial lawyer at Strickland, Diviney & Strelka in Roanoke. A Mary Washington and Richmond Law grad, he's also clerked for Judge Turk in the Western District of Virginia. The opinions and practice tips expressed in this post are solely those of the author. They do not represent the opinions of any member of the Supreme Court of Virginia or any other Court--or, for that matter, any right-thinking person.

And now, a word from Thomas:

Clerking for a Justice of the Supreme Court of Virginia was a wonderful experience that opened my eyes to appellate practice. One of my favorite aspects of the job was the knowledge that many of the attorneys who filed briefs and argued before the Court were bringing their A-game. While skill, raw talent, and experience levels varied greatly, most attorneys stepped up to the plate and gave it their best shot. That best shot might have been an incredibly polished and persuasive brief or it might have been the world’s greatest thirty-second rebuttal. But no matter what form their work product manifested, the good attorneys always oozed preparedness. With that tenet in mind, I have compiled a list of traits or practices used by the attorneys who I felt, knocked it out of the park.

On Brief

• Acknowledge Weaknesses. In their quest for appellate justice, some attorneys spend a great deal of time waving their banners and thumping their chests. They will proudly file a brief that is far too one-sided. Even the best arguments have holes. If an attorney consistently pronounces the strengths of his or her argument while glossing over the weak points, her brief can come across as disingenuous and uninformed. That brief does not reflect the case, only a few facets of it. Leave the one-sided claims to the folks in advertising. Better briefs illuminate the entire case by spotlighting the argument’s weak points while simultaneously explaining how these points are not nearly as detrimental as the current case law would have the Court believe. The best briefs do this while acknowledging and attacking the arguments of the opposing party. 

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