Page 20 - Court of Appeal and Appellate Practice

S20 | MONDAY, AUGUST 25, 2014 | Court of Appeals and Appellate Practice
| NYLJ.COM

Oral Argument
While perhaps counterintuitive, the way recognized that almost every weakness in an the full cite of a case from memory, it comes

to win an argument is not to deliver a pre- argument, once identiied, can be effectively from the layperson in the audience who tells
prepared speech, harping on the strongest countered through argument. If your problem you that she understood everything you said
« Continued from page S16
points of your case, which have already been is adverse case law, it can be distinguished and believes that you are right.
Stories of such arguments are passed from fully briefed and have probably already per- on the facts. If the problem is factual, then Thus, in short, instead of being viewed as
lawyer to lawyer and judge to judge. After one suaded the court, but to use every minute strict construction of a case or statute might an aggressive game of dodge ball, an oral argu-
such argument, a presiding justice was heard of your precious argument time to confront provide a solution. And when all else fails, ment should be thought of as a partnership
to exclaim as he walked towards chambers, the dificult issues head on. Instead of seek- public policy can carry the day; for unlike to untangle a kite. In brieing, the advocate’s
“I just heard a symphony!” In another case, ing to duck hard questions, viewing them a trial court, which seeks to apply the law, argument soars, the strengths are presented,
a veteran New York City judge remarked in as distractions from the lawyer’s prepared an appellate court has the ability to make, the weaknesses downplayed, and there seem

an open courtroom, that while he had not outline, advocates should welcome them shape, and interpret the law to achieve a just to be no obstacles that impede the advocate’s
received a raise for many years, if he could and actively seek them out, for these are result.
line of reasoning. But during oral argument the
hear argument like that every day, he would the questions that will crop up again when A dodge-ball approach to argument fails judges’ questions identify and hone in on the
come to work for free.2 But what is more the case is conferenced, and they must be not only for seeking easy questions, and problem areas where the advocate’s line of
striking than the impact of a great oral argu- answered and dispelled if a victory is to be evading dificult ones, but also for attempt- reasoning has gotten stuck. If the advocate lis-
ment is the rarity of one; for the ability to obtained. Of course, for this strategy to work, ing to stun the bench with overly technical or tens carefully, he will understand the judge’s
deliver a great argument is not unique to the advocate must be very well prepared, complex answers. It is well known and often concerns, and will be able to provide valuable
only a handful of geniuses who like Michel- and, at a minimum, must have a thorough repeated that an answer should plainly start information from the record or the law to

angelo or DaVinci were uniquely capable of knowledge of the record and the law and a with yes or no. But beyond this, an effec- help guide the court through the twists and
sculpting David or painting the Mona Lisa. complete understanding of the adversary’s tive advocate’s position should be easy to turns of each knot, untangling the argument,
To the contrary, almost every attorney that arguments. While not every question can understand and capable of being expressed in clarifying it, straightening it. The knots cannot
I have gotten to know during the course of be predicted, preparation through the use plain language. In this, as in other areas, the be ignored, because then the kite will not ly
my career has at one time or another deliv- of formal or informal moots, policy discus- principle of Occam’s razor controls: The more at all. Nor is it effective for the advocate to
ered a brilliant argument over a cup of cof- sions with colleagues, and practice arguments simple and straightforward the argument, the lose patience, and pull against the court too
fee at Starbucks when explaining their latest delivered out-loud, with the advocate “talking more likely it is to be correct. So while appel- sharply, for this will only tighten the knot and
dificult case to me, and passionately—but to herself” by delivering an argument and late attorneys are often frustrated by a judge’s may snap the line. Rather, like untangling a
congenially—answering my skeptical ques- simultaneously assuming the role of a ques- request that they stop arguing intricate and kite, it is necessary to quietly pay attention

tions about why they should prevail in the tioning court, is very helpful. I have always “very technical” legal principles or citing cas- while the bench or opposing counsel speaks,
face of contrary authority or competing done this in the car on my way to work, and es, and just explain the “simple issue” and to think the solution through, to recognize
public policies. If only that conversation was very grateful when Bluetooth technol- why the advocate’s position “would be fair,”3 and deal with each twist and turn, to tease
could be bottled like a Frappuccino and then ogy spared me from the worried stares of the fact is, this is the fundamental question the line of reasoning and work it apart, before
opened in the courtroom, it would be David’s passengers in other vehicles, who now no that shapes our law. And an advocate unable it comes out straight and clear, enabling your
unlinching strength and Mona Lisa’s intrigu- longer assume that I am crazy, but naively to answer this question in plain English is argument to ly.
ing smile in one bundle, and it would jolt a believe that I am talking on the phone like simply not going to be persuasive. A good The result is dynamic. It is liberating. It is
sleepy courtroom awake like a double shot of everyone else. The key is to practice out loud, test for me when preparing my most dificult alive. It is beautiful to watch and exhilarating
espresso.
as often as possible, not with a memorized cases was whether I could explain the crux of to experience. While dodge ball used to make

So the problem is not a lack of skill among script, but with a luid and ever-changing my argument to my grandmother, who was me cry as a kid, and funerals still do, lying a
appellate practitioners, nor a lack of convic- discourse that helps you understand and always very interested in my work, but had kite has always made me smile.
tion for their causes; to the contrary, in my effectively confront the weaknesses of your no legal background whatsoever. If I could
view, appellate attorneys are among the position.
make her understand the issues at the heart •••••••••••••• •••••••••••••• •
smartest, most talented, most open-minded, In this regard, it should be noted that every of a case, the arguments on both sides, and
and most passionate members of the bar. It argument has a weakness. If identifying the why I should prevail, then I was ready to 1. See, e.g., Alicia Hickok, “Oral Argument: Not a Use- less Exercise,” published in Appellate Issues, www.am-
is, instead, a problem of time and place. It weak spots in your position is dificult for persuade the most erudite bench. Indeed, bar.org/AJCCAL (Aug. 2013); see also Myron H. Bright,
can be easily solved, I think, if oral argument you, it can be helpful to argue the other side; in my view, the greatest compliment after “The Power of the Spoken Word: In Defense of Oral Argu-
ment,” 72 Iowa Law Review 35 (1986).
is moved out of the courtroom and into the for there is no surer way to understand the a particularly complex oral argument does 2. Oral Argument of People v. George Rodriguez, Queens Co. Ind. No. N10873-06, May 11, 2009.
corner Starbucks. But, in the event that your strengths and problems of an adverse posi- not come from a fellow-attorney’s marveling 3. See, e.g., Oral Argument Transcript of People v.
next calendar notiication does not provide tion than to be forced to adopt it and try to at your recitation of every subsection of an Christopher Brinson and Lawrence Blankymsee, at pp.
for this alternate forum, all is not lost. A shift convince someone of it. So, too, it must be
arcane statute and your ability to provide
23, New York Court of Appeals, May 30, 2013.
in perspective on the part of the advocate
can bring the congenial spirit of lively dis-
course and free exchange of ideas, which has
long haunted the local coffee house, lying Torts
normal use of the digger, rather than a func- a failure on defendants’ part in selling and
into the courtroom like a gust of fresh air, tioning safety device that could have pro- distributing the digger with a defectively

blowing aside the dusty reams of papers and tected Bowers from injury, and that because designed shield.
notes, reinvigorating the room, and making « Continued from page S9
the defect existed when the product left the The court explained that its reasoning
everyone smile.
substantial modiication, were defendants place of manufacture, the modiication was in Hoover was consistent with its reason-
The root of the problem, and the source entitled to summary judgment dismissing foreseeable. Bowers further argued that the ing in Robinson, quoting from its conclu-
of the solution, may be found in many attor- plaintiffs’ design defect claims, given the expert testimony raised questions of fact sion in Robinson, that “where a third party
neys’ fundamental misunderstanding of the established precedent articulated in Rob- concerning whether Smith’s conduct was makes post-sale modiications that destroy
nature and purpose of an oral argument as an inson v. Reed-Prentice Division of Package foreseeable and whether the shield was the functional utility of the product’s safety
adversarial, or even hostile, exchange with Machiner y Company that “a manufacturer defectively designed, which should be suf- feature, the manufacturer will be insulated
the bench. Indeed, the term “argument” sug- of a product may not be cast in damages, icient to defeat summary judgment and pro- from liability absent a showing that ‘there

gests this by deinition, and thus undoubtedly either on a strict products liability or neg- ceed to trial. All parties agreed Bowers would was some defect in the design of the safety
contributes to this unfortunate view. As a ligence cause of action, where, after the not have been injured if an intact shield had [feature] at the time’ the product left the
result, akin to a game of verbal dodge ball, product leaves the possession and control been in place on the date of the accident.
manufacturer’s hands.”33 In Robinson, as
many lawyers believe that the object is to of the manufacturer, there is a subsequent The court afirmed the verdict for Hoover, compared to Hoover, the plaintiff did not
duck the dificult questions being hurled at modiication which substantially alters the ruling that “defendants did not demon- assert there was a design defect at the time
you by the bench, to try to elicit only easy product and is the proximate cause of plain- strate their entitlement to summary judg- the product left the manufacturer’s control.
questions that can readily be caught as the tiff’s injuries.”31
ment based on Smith’s failure to replace In holding that Smith did not modify
surest route to victory, and to throw back Defendants argued the Robinson substan- the broken safety shield.”32 In her majority the digger so substantially as to warrant

responses that are both surprisingly aggres- tial modification defense applied, which opinion, Judge Sheila Abdus-Salaam stated absolving the seller and distributor of the
sive and impossible to fully catch or com- automatically mandated the grant of sum- that Hoover’s expert and fact evidence, and machine’s design laws, the court reasoned
prehend, so as to catch the bench off guard, mary judgment in its favor. Bowers asserted particularly the expert testimony, raised a that “[a]lthough owners are obligated to keep
confuse it into silence, and thus knock out Robinson did not apply because, according triable question as to whether Smith’s failure their products in good repair, they should
the opponent. Nothing is further from the to Smith’s testimony, he removed a broken to replace the shield alone caused plaintiff’s not be required to continually replace defec-
truth.
plastic shield that had been destroyed from
injuries, or whether his failure pointed to
tive safety components even if, as here, the