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.
- 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.
- Be Aware of the Size, Ratio, and Placement of Your Arguments. Try to think of your brief as a used car lot. Your six worthwhile legal arguments are six cars, any one of which the Court could decide to buy. But some of your cars have problems. Your hearsay model has a broken reliability clutch and all three of your fraud roadsters have serious issues. But you also have a shiny new Lamborghini Negligencio fully equipped with a hand-built V12 Sufficiency of the Evidence Engine. This is the car that you showcase. It should sit at the front of your lot, bathed in spotlights, while the others remain neatly displayed some distance away. Your best argument should be similarly displayed. Highlight it with size and prominence. Make it leap off of the page. If your case has six arguments, then these arguments should be prioritized. If all of your arguments are crafted and presented in the same fashion, your stronger contentions may suffer as they bear the same packaging as your weakest contention. Proudly assert your best argument. Keep it at the front of your brief and make sure your thoughts and theories are clearly stated on the page.
That’s all for today. Stay tuned for further tips from Tommy.