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 instab 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.”