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lectern . Prowl th rough your brief case. Drum your fingers. Rule 1: Prepare Look at your watch and yawn. Take out a pen and edir your poorly. Being well script. If yo u brin g Posr- irs with you, you can sti ck som e prepared for the on every page with notes ro yo ursel f (e.g.. reminder co argument could check rhe d ate of thar d eposition in Sea rcy, list of irems to backfire you pick up at the groce ry store on [he way ho me). If you're lucky you might win. enough co have a pitcher of ice water at co unsel table, pour yourself som e and munch rh e ice. Bring another lawyer with yo u and Rule 5: Be Nonresponsive. exchange com m ents durin g yo ur oppoWhether you represent the appell ant or nent's argument. Make faces when your the appellee, you have th e opportunity to opponent says so mething that hurts your speak after the other guy. whe th er in case. response or rebu[taJ . Some lawyers have been known to pay attention to the other Conclusion side's argument and to address its specifics ir is not necessary [Q do all the th ings outwhen they get up to the lectern. Don't do lined above to reach yo ur goal of making the that. If you accidentally hea r a question losing argum ent. A judi cious mix of three o r asked of appellant's counsel. do your best to fou r of them might be all it rakes. Nor have ignore her response. Yo u wo uldn 't want ro I set out all the ways yo u can make a perexploit the other side's weaknesses; you've fectly ineffecrive o ral argument. The appelgOt enough of you r own ro worry about. If la[e judges of [his "a[e could probably add a you feel YOll must actually make some few more tips to those I' ve outlined above. responsive points as appell ee or on reb uttal, Th ey've been there. seen and heard that. however. start by repeating what yo ur oppoThe appellate co urts of Arkansas are effinenr said before you get around to making cient. but you ca n co ntribute to their expeyou r own assertions. diem handling of your appeal. Help accelerIf you rep resent the appellant. reserve a ate th e appellate process. Make the losin g bi g chunk of yo ur twenty minutes for rebut- oral argu ment .• tal. T his gers YO li off [he hook quicker for the main argument. and when you r time I. Coleen M. Barger. How to Write the co mes for rebuttal, yo u can instead ask the Losing Brief, The Arkansas Lawyer 10 Co urt ifi r has any questions. If yo u're lucky, (Sp ri ng 1996). there won't be any (poss ibly because the 2. This technique is eve n more effecti ve if Coun has already d ecided [Q affirm) and your brief fo llowed the advice of my other you can quickly sit down again. If you essay. decid e ro try a rebuttal, howeve(, be sure co rt:peat till: sa llie thin gs yo u said in yo ur argument in chi ef. And use exactly the same words. Introduce sente nces with phrases like "As I said ea rl ier," "Again. " or "To reirerColee" M. ate. Barger is
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distract the judge from the issue she had in mind or otherwise succeed in highlighting so mething she doesn't care about. Or stall by duowi ng rh e Court's qu estions back at them. Or ask the judge to repeat the question. Twice. If a member of the Court tr ies co pin yo u down with a "yes-no" question. don't start
by responding "yes" or "no." Instead, start with your reasonin g and gradual ly lead up to your affirmative or negati ve respo nse-or go off on a differenr [angell[ alcogerher. Occasionally one of the judges may seem to be giving yo u an aggress ively hard time (such as repeating a question that yo u're trying hard to avoid answering). Go ahead and [ell rhe judge that rhe ques tion is not relevant to your case. (Yo u might also remind him that jt's been a long time since he prac[iced law.) And if a judge poses a hypo[heri cal to test the limits of the rul e you're proposi ng the Co urt sho uld adopt o r ex tend. tel1 th e Court that those are not the facts of your case. Treat eve ry question as a hostile one. YOli may succeed in persuadin g a judge who was inclined to rule in your favor to switch her vote. Remember. however, that at th e Arkansas Supreme Co urt. you only need four out of the seven to rule against you. Are you remembering to taJk fast and avoid m aking eye contact? This is time-tested technique that ca n result in fewer questi ons. as the judges ca n' t get yo ur anenrion to break in and ask anyth ing. Now I know [hat some of you are slow talkers. If that's you. go ahead and talk slow-just don't pause too often to breathe. If th e judges do manage ro break into you r monologue with a question. don't give a direct answer. For exam pl e. if r.h e Court asks you so methi ng about the evid ence, answer by d esc ri bing a case. Th ese detours tend to d eter judges from pursuing what otherwise migh t be a pe rsuasive point.
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Rule 6: Find Things to Do While Waiting Your Turn to Speak. You 're goi ng ro have as mu ch as twenty minutes to wa it before yo u get up to give your response. if you represent [he appellee, or your rebuttal, if your client is the appelIanr. That's a lot of time to kill. H ere are a few options for usin g ir: Re-organize the stack of papers thar travels wirh you to the
Associate Professor
ofLaw, at the U"iverstiy
of Arkansas at Little Rock William H. Bowell School of Law.
Vol. 41No. 3ISuml11er 2006
TIle Arkansas I.awyer
17