You are in court face-to-face with a panel of judges. The judges care about the facts, the law, and the impact their decision will make. Your job is to tell the judge why they should rule in your favor and to convince them that this is the right decision to make.
The judges are going to start asking you questions. You have to be quick on your feet and be able to get back to the point you were making. Like any line-of-questioning, sometimes responses get a little off-track. We have to steer the conversation back to the point. Calmly… Gracefully… Below are some tips to lay the foundation for your conversation with the court.
First 45s and Roadmap
You have likely already been taught what First 45s are. Your First 45s are the 45-second, elevator-pitch version of your argument. Boil down your entire argument into two or three points. If you are arguing three points, your first point should be your strongest argument. Your last point should be your second strongest, so you have something to revert to. Your second point should be the weakest; this will ensure that by the end of your argument you can end with your third point (i.e. your second-strongest point) for reinforcement. Add the introduction that you were taught. Conclude by asking the court to rule in your favor. Memorize this. These are your First 45s.
The roadmap follows your First 45s. The roadmap is an outline of your major points of argument. It is a concise summary of your entire appellate brief. A decent roadmap may take up 2-3 pages, but this will vary with the complexity of the case.
Annotating the Record and Cases
Set yourself up for success. Annotating the record and your research is a slow and tedious process, but it pays exponential dividends. When it comes to preparing for a hearing or oral argument, there is no substitute for hard work. Give yourself a few hours to go through the process. Take more time doing this with your record than with your cases. While it is very important to know the cases, it can be more important to know the record inside and out because the judge may be less familiar with the facts than they are the law.
Take a set of different colored highlighters. Set different colors for each category that you would normally brief a case into: facts, rule, holding, and reasoning. This is the foundation for the roadmap that you will later create. Focusing on the facts and reasoning at this stage will give you the proper foundation for distinguishing the case you argue from previous cases.
Choose a bright highlighter color for the facts. When pouring through your research, you are bound to have that ‘Oh, wait!’ moment. “Oh, wait! What was that case that said like the total opposite?” You can easily pull it up, your eyes will quickly dart to the bright color, and your life will be so much easier.
Choose a bright color for the reasoning, but make sure it is a different color than the facts. As previously stated, you will use precedential courts’ reasoning to distinguish/analogize to the facts in your present case.
If you want to go the extra mile, drill down into the guts of the reasoning. While you have a case open in Westlaw, open the ‘Filings’ tab at the top. If you are lucky, this will take you to the briefs submitted by the parties. Not all cases have the submissions of the parties but if so, you can do a quick-and-dirty version of your highlighting technique in the party briefs themselves. Go through the main brief of each party, focus on highlighting the reasoning and rules only. You will be surprised at how many new arguments you walk away with or even new angles for the same arguments.
Regardless of whether you are able to find the parties pleadings or not, it is just as important to take a deep dive into the cases themselves and note the interplay between the rules and facts to flush out the ultimate reasoning. You should know the tests and reasoning by heart because when questioned, it is likely you will have to apply the reasoning to the judge’s questions and respond with something persuasive and favorable to your case or in the alternative, use the reasoning to pivot. Identifying the inner workings of each case you use will also boosts your confidence because you’ll assure yourself that you know what you’re talking about.
Making the Case Sheet
Now that you have done the hard work, it is time to put the fruits of your labor into one final product. Making a case sheet will not be nearly as tedious as annotating the record, but you should still allocate a couple of hours to it.
Remember those First 45’s? Your case sheet should be broken up into two or three sections, corresponding with each of point in you First 45s. Under each section, make two columns: One for ‘cases’ and one for ‘contents.’
Under ‘cases’ on the left column, make sure to list the year and the court. Supreme Court decisions will obviously take front stage, so prioritize those. Be keen on the year these cases were decided. But be sure to do the same with circuit court cases. Even if you draw from a district court, which has less precedential power than a circuit court, it may prove to be highly relevant to your policy argument if it is a recent case. By showing that a certain line of reasoning is trending in modern times, you can win big persuasive points with the judges, however, always try to find binding precedent to reinforce your argument.
Under ‘contents’ on the right column, make sure to list the facts, holding, and reasoning of the respective case. If the case is especially pivotal, or one that holds a lot of precedential value, list it higher up.
Now it’s time to color coordinate. Go through all of the highlighted portions of your research and insert into the column ‘contents’ next to the case name. Keep the color the same as that which you used when highlighting the facts, rule, holding, and reasoning. When you’re done pat yourself on the back; you are one step closer to being able to answer questions confidently. Yet remember, you should not rely on your notes to help you pivot from questions. True confidence comes from a solid understanding of the relevant cases and law.
Responding to the Judge
Here you are face-to-face with the judge again. You orally cite a case in your favor. The judge asks, “Yeah but is that case really the same as here? What are the facts of that case?” Rather than having a deer-in-headlights moment, bide your time. Slow your pace as you answer. “Your honor, the facts in that case are similar.”
While you are speaking, scan your case sheet for the case. Your eyes will then dart to the brightly-colored facts. Just start speaking. The judges will be so surprised that you knew the facts that it will likely bide you more time. This strategy has worked for me almost every time. Grab this time by the horns, pivot back to your argument, and take back control of the conversation.
Repeat the same process for reasoning. If a judge is argumentative about whether a case is really distinguishable, scan your sheet for that brightly-colored reasoning. Then restate the reasoning in your current record. The distinguishing point will then often speak for itself, but be prepared to finesse it on-the-fly. Use caution with this approach. It’s important to anticipate when you would need to retort with the reasoning of the case. You want to avoid a preplanned response that may be illogical or non-responsive to the judge’s question. Just because the cases are favorable to your side, or unfavorable to the other side, doesn’t mean they are appropriate. I’d also like to reiterate the importance of knowing reasonings and workings of cases cold. This is what lawyers are paid to do; anyone can read from a piece of paper but it’s helpful to have a crutch.
Practice, Practice, Practice
No matter how well you prepare, there will always be a curveball. A judge says something like, “Counselor this case is far too important not to have a clear holding on. If we were to hold in your favor, what would that holding be? – “Counselor, what’s the standard of review here?” – “Who has the burden of proof here?” These are things you just have to know cold; with enough practice you will.
The best way to expect the unexpected is to prepare.
Great article Evan! “The best way to expect the unexpected is to prepare” is so true.