AN APPEAL TO REASON

Yesterday I was scheduled for afternoon oral argument before the Court of Appeal, Fourth Appellate District, Division Three in Santa Ana. Before the attorneys checked in, we were waiting for the courtroom to open and talked about the "cloud" of oral argument. That's my term, because until I finish with oral argument, I am focused on my case and find it hard to think of other things. No addressing Holiday cards or writing plays. My full attention is focused on knowing the record and practicing my oral argument. One attorney commented that in an hour or two, the cloud would be lifted and we could become normal people again. I expressed my hopes - not for peace on earth - but for a pill that would take away all of my nervousness and that knot in the bottom of my stomach.

Because I was last on the calendar, I had the opportunity to observe all of the arguments. I made mental notes of my observations so I could pass them along to you. Our Court in Santa Ana is known as a "hot" court or bench. That means the justices are heavily involved in asking questions. I have been in some courts where the court listens patiently and never says a word. The attorney has no clue as to what the court is thinking or how to address specific concerns that are never expressed. Don't worry! You won't have that problem here. This Court is fully engaged, which is both a pleasure and a concern. Why? Because that means the appellate attorney really has to know the record and prepare to answer questions. And not just answer questions pertaining to the case, but questions that challenge the attorney's position.

So, here are a few observations:

1. Always answer the question put to you by the justices. NOW! Don't tell the justice that "I will get to that in a moment." The more difficult part is actually answering the question posed. I observed several attorneys squirming after a question was asked and trying to dance around it by giving other information that would help their position. And if the asking justice doesn't insist on an answer, you can be sure that one of the other justices will follow up on the omission.

2. Concede the obvious. If a point or fact is bad for your position, and you are asked about it, concede the obvious. Your credibility is at stake here and denying the obvious is going to hurt you.

3. If you are going to talk about new cases or statutes, be sure to advise the other side. One justice refused to hear about new statutes, opining that the failure to give notice to the other side was "sandbagging." Maybe not. It could have been an innocent omission done by someone unfamiliar with the rules, but it also could have been sandbagging. It won't work here. If you have new authority, let the other side know. In addition, why would you want to keep the Court from knowing this great new information? Let everyone be prepared and then you can have an intelligent discussion about the case.

4. Don't start off telling the court about the facts of the case. They will stop you immediately. Assume they know the facts and only work in the facts relevant to your (focused) argument. When an attorney starts off with "The facts of the case are . . .," the Court knows it is dealing with someone unfamiliar with oral argument.

5. Know your record! You may get asked detailed questions as to your evidence and where it is in the record.

By the way, one of the "attorneys" presenting argument was a certified law student. She presented argument in a criminal case and I thought she did extremely well. She stood firm on her position and did not wither away under intense questioning by Justice Rylaarsdam. At the conclusion of her argument, Justice Bedsworth complimented her on her performance. I have to admit that I felt a measure of pride in her performance.

Now it is less than 24 hours later, the cloud has lifted, the knot in my stomach is gone, and I can start addressing a few Holiday cards.