Page 16 - Court of Appeal and Appellate Practice

S16 | MONDAY, AUGUST 25, 2014 | Court of Appeals and Appellate Practice
| NYLJ.COM

APPELLATE PRACTICE: GETTING HEARD

By Donna Aldea

Smile:

his Is Oral Argument

J

the lawyer is the one in the box. Surely, the erry Seinfeld once quipped that “Accord- opportunity. It’s like buying a lottery ticket
argument is D.O.A. Even if the attorney fol- ing to most studies, people’s number and throwing it out before the drawing.
lows to the letter all the oft-recited rules— one fear is public speaking. Number two
Invariably, another handful of attorneys,
opening with his name and “may it please the is death. . This means that to the aver- who have presumably prepared for argument
court,” deferring to the court about whether age person, if you go to a funeral, you’re bet- and have taken the time to make the trip to

to provide a brief recitation of facts, always ter off in the casket than doing the eulogy.” court, stand up during the calendar call and
saying versus instead of v., keeping distracting While one might think the joke has limited declare that they will submit. Surely this is
gestures to a minimum, and never speaking applicability to attorneys, whose profession a generous gesture to a busy bench and the
over a judge—none of this can revive a bench is so dependent on public speaking, a trip to other attorneys, who can now cross that case
or resuscitate an argument. But, admittedly, the Appellate Division on brisk fall weekday to off the calendar and shorten their own wait
this is still better than those attorneys at the hear the oral argument calendar often makes time. But as I strike through the submitted
opposite end of the spectrum, who either do me think of the comedian’s line. Avoidance case in black Sharpie, thinking of the wasted
not listen to the judges’ questions or refuse to of argument seems to be a theme, as does a hours of preparation and travel time, I can-
answer them, who interrupt judges so as to funerary mood. And both run contrary to my not help but wonder if the submission was

inish their own points before being burdened view of oral argument, which I never forgo, caused by a certainty of victory or a resigna-
with a question, who refuse to even recognize, and always deliver with a smile.
tion to defeat, and if such certainty might have
let alone discuss, any viewpoint different than A good third of the cases on the typical been misplaced. For the losing party at least,
their own, and who are ultimately tuned out Appellate Division calendar are marked sub- the argument might have made a difference.
or harshly silenced by an offended court.
mitted, both parties having decided to forgo Studies show that oral arguments impact the
But then, every once in a while, an advo- the argument altogether at the time that they result in as many as 20-30 percent of cases,
cate gets up and really argues. And when that wrote their briefs. This always struck me as and are helpful to the court in as many as
happens, you not only hear it, but see it and odd, for as appellant, the need for oral argu- 75 percent.1 And even to the winning party,

feel it. As soon as such an advocate begins to ment may not become apparent until after an oral argument might prove useful in con-
speak, the conidence of preparation and con- respondent’s brief is read; and respondent’s vincing the court to write a fuller decision,
viction reverberates in his voice, and it is like need for argument may not become plain until enunciate a broader or narrower rule of law,
a ray of sunlight burning through the dim and the reply brief counters points of fact, law, and thus provide a more useful precedent for
foggy room. The opening lines of argument or policy. Making the decision in advance of cases to come or a better chance of defend-
are not a dull recitation of a point heading, seeing the brieing in its entirety seems pre- ing that decision in a subsequent appeal to a
but enticing and intriguing, hitting a contro- mature, and is a loss of a potentially valuable
higher court. But, more fundamentally, after
versial issue or dificult proposition head-on, all the work has been done, and the trip to
inviting—inciting—further inquiry, and mak- court made, it seems such a pity to not stand

ing the whole courtroom take notice. The up and argue. It’s like packing for a trip to
other lawyers all look up from their folders Paris, making the light, and then turning tail
and papers simultaneously, as though roused to go home before leaving Charles de Gaulle
from a slumber, lowers turning toward the Airport.
sun. The judges sit up straighter, lean forward Then there are those who make their
in their seats, and, then, invariably, one of appearance and request their time, only to
them smiles. And in the animated exchange stand up when their case is called and say,
that follows over the next 10 or 20 minutes, “if there are no questions, I rely on my brief.”
and the mutual respect that such exchange The court seems to recognize this as the func-

engenders, one sees fulillment of the appel- tional equivalent of a submission, as I have
late advocates’ standard invocation, “may it never seen this approach elicit a question,
please the court”; for however dificult the even from an otherwise “hot” bench. Doubt-
questioning becomes, however skeptical of less, though I have not seen it, the words do,
the advocate’s legal position the court may on occasion, elicit a stray question, just like
be, the court is, in fact, pleased. » Page S20
the “speak now or forever hold your peace”
at a wedding. But this is clearly not the com-
mon, anticipated, or hoped-for result.

DONNA ALDEA is a partner at Barket, Marion, And of those attorneys still left in the court-
Epstein & Kearon, where she is head of appellate room after all the submissions are excused,
a good number deliver scripted speeches
and post-conviction litigation.
in such somber or monotonous tones that
Seinfeld’s funerary comparison is not a far
stretch, and one is left to ponder if perhaps