Recently, I’ve been experimenting with the way I prepare for oral argument. After reading David Frederick’s outstanding book, Supreme Court and Appellate Advocacy, I’ve followed his advice and taken to making argument blocks.
What are argument blocks? They’re really just a table summarizing my 3-5 key affirmative points and my responses to opposing counsel’s 3-5 best points. They summarize, in free-verse bullet points, everything important that I have to say, with cites to the joint appendix and pages of case law.
Here is a sample block of affirmative points:
FMVSS should not be admitted
· Minimum performance in front impact collisions. This is rear impact.
· Physics different. JA 701-02.
· Compliance not relevant—Uxa, Malcolm
· Restatement 4(b): product’s compliance with reg relevant to whether product defective with regard to risks sought to be reduced by reg
· Close case. JA 1837.
· Relevance outweighed by danger of unfair prejudice
· D: Government certified product as safe. ECF 311 @71-72
· MIL: JA 169
· NHTSA certified copy of NHTSA test of compliance. JA 1294-95
· Mentioned NHTSA 15x
FMVSS Jury Instruction
· Compliance “does not exempt a person from liability at common law.” 49 U.S.C. 30103(e)
· “compliance with SS is not to be a defense or otherwise affect the rights ot the parties under common law….” H.R. No. 1776 at 24 (1966)
· Preserves state sovereignty
· DX39: FMVSS 213 protects against unreasonable risk of death or injury. JA 1120
· Instruction: can consider, does not require you find one way or another. JA 1660
· Pl. 27: compliance not a defense. JA 1248
· Pl. 28: Compliance not evidence that gov’t certified as safe. JA 1249
· NHTSA found HBB “reasonably safe and not unreasonably dangerous.” ECF 311 at 71-72
Instruction 16 (JA 1659)
· Based on cases where sophisticated consumer elects not to have optional safety feature. Austin, Butler.
· No such choice here
· Mom no role in designing product
· Bought retail at big-box store. JA 644
· Did not see much selection. JA 645.
· No seats with larger wings. JA 649.
· Not VMJI
· Neither SCV nor 4th Cir. has ever approved in this context
Instruction 16 (JA 1659)
· In retail context, always safer product
· Q: was HBB unreasonably dangerous?
· Distracts jury
· Inverts legal principle, makes consumer justify purchase of anything but safest possible product
· As written, assumes choice was reasonable—central issue in case
I keep these argument blocks in a separate, tabbed portion of my argument binder. I staple them to the inside, facing pages of the tabbed dividers. That way, when I turn to the tabbed section of my argument binder, my entire argument and rebuttal opens up before me. So no matter how badly I get batted around during an argument, I can always find my way back to my argument.
I’ve found this extremely helpful when facing a hot bench. It’s also useful when listening to opposing counsel’s argument. Having thought in advance about the opposition’s main points, and your responses and authorities, lets you craft a responsive argument on the fly. Working from argument blocks also ensures that you won’t sound (or feel) rehearsed. All in all, I’ve found it to be a handy addition to my prep work.