Dec 12, 2008
A Sentence You Don’t Want to Hear in Oral Argument, Unless You’re on the Other Side
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By: Luke Gilman | Other Posts by Luke Gilman Go to Comments | Be the First to Comment |
UHLC has an appellate advocacy class taught by Randy Roach who advocates a “Court-Centered Approach” to appellate advocacy. Under this paradigm, the task of the advocate is not so much to hammer home your point, but to help the court. A court-centered advocate is still persuasive, but the difference is one of being a means by which the court reaches a decision rather than an obstacle. In oral argument this means being honest about the weaknesses in your case and candid when asked to concede a negative point in order to preserve your credibility and your ability to persuade.
A writing professor once told me that the best way to learn is to see someone do it well, and then to see others do it badly. Case in point:
JUSTICE SOUTER: …wouldn’t it have been mitigating evidence to learn that other people, at times relatively close to the events in question, without being coached by the defendant, had concluded that he was a drug user? Wouldn’t that have been mitigating evidence?
MS. SMITH: I don’t think that it would have been material to –
JUSTICE SOUTER: We are not asking about materiality at this point. We are asking about the mitigating character of the evidence. Would it have been favorable to the defendant? Would that have been its tendency?
MS. SMITH: I think it added no more than –than what was already before the jury.
JUSTICE SOUTER: That was not my question. Was it favorable evidence? Did it have a tendency to favor the defendant?
MS. SMITH: No, not under his theory, and the reason is –
JUSTICE SOUTER: Then I will be candid with you that I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.
Ouch.
From Cone v. Bell, No. 07-1114, Transcript (.pdf) at 37-38.
For more on a court-centered approach, see Randy Roach, Texas Supreme Court Oral Argument: A Court-Centered Approach (.pdf). If you’re a student at UHLC, I highly recommend the course.
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