Toward a Kinder and Gentler (and More Effective) Advocacy Style

by Kevin Dubose, Alexander, Dubose, Jefferson & Townsend, LLP

Introduction

In the middle of my fourth decade of practicing law, mostly as an appellate specialist, I realize that my style of oral and written advocacy has changed since I was a young lawyer. I am less aggressive, less manipulative, less snarky, and less focused on my own performance. I also am more candid, more flexible, and more audience-sensitive. I approach advocacy less as an act of bending the mind of my audience to my will, than it is a joint process of discovery, analysis, and reaching reasonable conclusions together.

I have not fully mastered this advocacy style. But it is what I consciously aspire to, and is a worthwhile goal for all appellate advocates. This approach is a more effective way to communicate with, and ultimately persuade, today’s appellate judicial audience.

The way we were (or at least I was)

I spent years as a competitive public speaker, first as a high school debater, and then in mock-trial and moot court competitions in law school. As a young lawyer I coached law school moot court teams for several years, which caused me to further focus on appellate advocacy as a competitive sport.

Then I spent the first six years of my career as a trial lawyer, with all of the competitive, combative, and ego-driven mind games that practice inevitably entails.

The combined result of these experiences was an advocacy style that was focused on demonstrating superiority to opposing counsel. This was often accomplished by melodramatic flourishes of language, exaggerated cleverness, snarky put-downs, and well-rehearsed performance techniques. Although I was aware that judges played a role in the process, I assumed that if I could prove to myself and opposing counsel that I was the superior advocate, then surely the judges would figure that out and decide cases accordingly.

What changed?

Me. And the judicial appellate audience.

I changed in ways associated with experience, maturity, and accumulated wisdom and perspective.

I heard and read the teachings of Professor George Gopen, who emphasizes the importance of writing with a focus on the needs and expectations of the reader, rather than the unrestrained impulses of the writer.

I participated tangentially in creating, and was liberally exposed to and studied and began to teach the groundbreaking work done by my brother, Robert Dubose, in legal writing for screen readers, which also emphasizes being mindful of the reader’s experience.

I read – and in some cases participated in writing – literature on ethics and professionalism in the appellate practice.

I studied judicial surveys, listened to judges’ CLE presentations, and talked to judges. That process was somewhat de-mystified when more of my friends, colleagues, and former students became judges.

Not only have I learned more about appellate judges, but the composition and quality of the appellate judiciary has changed during my career. When I began practicing law the conventional wisdom was that appellate judges tended to be old white men who had not been successful practicing law, were appointed to a vacant appellate bench as a return for political favors, and rode the wave of incumbency until they qualified for a pension. There were numerous notable exceptions to this characterization, locally and state-wide, but there were too many instances where the stereotype rang true.

Today’s appellate judiciary seems to be more diverse, younger, brighter, and more engaged. I know outstanding appellate advocates who have become appellate judges as a public-service-oriented career choice, rather than out of an absence of choices. At almost every level, oral arguments have changed from disinterested panels that asked few questions to interrupt prepared speeches, to fully engaged “hot” panels that spend most of the argument time in an informed dialogue with the advocates about the issues. Briefs seem to be read and absorbed more thoroughly, and relevant portions of records examined more frequently.

This more fully engaged appellate audience demands a different style of advocacy, one that recognizes:
  • Appellate judges should, and do, decide cases based on the law and the facts, not the quality of the oral advocates.

  • Appellate judges not only are unimpressed by lawyers being snarky with and about each other, but it makes them uncomfortable. They do not consider it helpful in doing their job, which is to decide cases and write opinions, not to referee cat fights.

  • Appellate judges not only have to decide the case before them in a fair and appropriate manner, but have to consider the implications of their opinions on other cases.

  • Appellate courts are over-worked and under-staffed, which creates time pressures that make judges appreciate lawyers who get to the point quickly.

  • Appellate judges like it when briefs are so objectively honest and accurate that parts of them can be appropriated and used in opinions. 

  • Appellate judges – like most people – do not readily embrace being insulted, talked down to, or dogmatically told what they have to do. They prefer a reasoned and rational approach that respects their intelligence and allows them to reach their own conclusions.

  • Appellate judges are human beings whose world view is inevitably shaped by their experience. But they rarely, if ever, pursue ideological agendas, have pre-determined ideas about the outcomes of cases, or decide cases based on anything other than what they truly believe is the best result based on the facts and the law in that case.
So, what do I try to do that is kinder and gentler?

Try to never make it about opposing counsel. At a minimum, this means never addressing opposing counsel by name in briefs or oral arguments. But it also means refraining from using phrases like “counsel for Appellants” or “the attorney for the Partnership.” Even those phrases focus attention on the individual lawyer representing the opposing party and personalize the argument. Address the arguments advanced on behalf of the opposing party; don’t attach the argument to the person making it.

Don’t address the appellate strategy employed by the opposing party. Avoid statements like, “The Trustees saves this argument for last because they know it lacks merit,” or “Plaintiffs avoid mentioning the standard of review because they know they cannot prevail under the proper standard.” These strategic decisions were made by lawyers, and this is another way of making a personal attack on counsel, even if counsel is not expressly mentioned.

Avoid commenting on the integrity of opposing parties, counsel, or arguments. Don’t say things like, “The insurance company is represented by experienced appellate counsel who are well aware of the standard of review and choose to ignore it.” Or, “There are no Texas cases standing for this proposition, and they know it.” Be wary of ever accusing the opposing party of being “disingenuous,” because it often implies a conscious intent to deceive.

Be respectful of the trial court and the appellate court. Even though any appellant must point out reversible error in the trial court, there are tactful ways of doing that. It helps to adopt an attitude that recognizes that even hard-working and conscientious trial judges have to make numerous difficult judgment calls on the fly every day of a jury trial, and occasionally get it wrong despite their best intentions. That approach is far better than suggesting that the trial judge was so stupid and incompetent that it is a minor miracle that he was able to execute an appealable judgment. Trial judges are also part of the judicial community, and in many ways are closer to being peers of the appellate judges you are writing for than you are as an appellate practitioner. Attacking a judge’s potential friends and colleagues is not calculated to make a favorable impression.

When addressing prior negative precedent of the court you are addressing, consider arguing that the facts are distinguishable, or that the jurisprudence has shifted since the previous opinion issued. Either approach is preferable to simply saying that the previous opinion “was wrongly decided at the time, and it remains wrong today.”

Finally, even though a motion for rehearing must point out result-altering errors in the court’s opinion, leave open the possibility that the court inadvertently, and in good faith, failed to consider a particular implication of its decision, or the relevance of a piece of evidence. Or, when appropriate, implant the possibility that you may not have been sufficiently clear in calling these things to the court’s attention in the original briefing. Any of these approaches is far preferable to accusing the court of intentionally disregarding an argument or a fact in the record in order to reach a result.

Avoid being dogmatic, arrogant, or unjustly confident. Sure, you want to act like you believe in your arguments. But most cases that end up in the court of appeals with good lawyers on both sides are not one-sided affairs that should be treated as a slam dunk. Candor and integrity probably demand that you treat your opponent’s arguments with the respect that the court is likely to give them. If the court is intrigued by an argument, and is anxious to hear your reasoned rejoinder, blustering and telling the court that the argument is “patently absurd” or “cannot be made with a straight face,” is not likely to make the court less interested in the argument. It will only make the court less interested in considering your response, because it is not helpful.

Similarly, don’t tell the court what it has to do. Avoid using phrases like, “This Court must affirm,” or “This Court has no choice but to reverse.” Most people resent being told what they have to do, and it makes them defensive and resistant. Make your best argument, tell the court what you are asking it to do, and then step back and let the judges reach their own conclusions and do their job.

Don’t hide the ball or ignore bad facts or bad law. I used to think that if I could get the court to focus on my best points, they might ignore the other side’s best arguments and facts and decide in my favor. That approach is na├»ve and unrealistic. The court and the staff attorneys will spend as much time on the other side’s brief as they do on yours, regardless of how you choose to spend your time in oral argument, and troublesome arguments and evidence will not be overlooked or swept under the rug because of your manipulating eloquence. Ignoring difficult points just means that you are missing the opportunity to give the court your best answer for them, and leaving the court to consider those points in a vacuum.

In oral argument, be prepared for a productive conversation, not an exercise in oratory. You can prepare a 20-minute script for a 20-minute argument if you want. But 9 times out of 10 – or maybe 19 times out of 20, or 49 times out of 50 – you will not be able to get through, or maybe even get to, your script. And if you think the best approach is to quickly and dismissively answer questions and then get back to where you were in your script (before you were so rudely interrupted), then you are badly missing the point of oral argument. Oral argument is not a chance for you to display your eloquence, but an opportunity for the court to ask questions about the things they – or other judges on the panel – are having trouble with. The best use you can make of your time in oral argument is to respond to and allay those concerns. And if you are focusing on your own presentation rather than meeting the expressed concerns of the court, then you may be missing the best opportunity to win your case.

Conclusion

The title of this article is more than just an attempt to invoke the good will of George H.W. Bush’s nomination acceptance speech in 1988. The phrase “kinder and gentler” summarizes the two points I think are most important to develop in an effective advocacy style. We should try to be kinder to opposing counsel. Treat them with respect, and like worthy adversaries, rather than dismissively and derisively. And we should try to be gentler in our efforts to persuade the appellate courts. Ham-handed attempts at intimidation and manipulation are rarely successful. Treating appellate judges like intelligent and conscientious legal scholars with whom we can reason together is much more likely to be effective.

Last month I was interviewing my friend Charles “Skip” Watson, an appellate lawyer in Austin, for a State Bar project. He said this: “Opposing counsel is not the enemy. They are just another lawyer trying their best to do their job.” In 36 years of practicing law I had never heard anyone say that, and it is something I have thought about almost daily since then, because it is so true, and so refreshing.

Opposing counsel is not your enemy. Neither is the appellate court. And your advocacy style should reflect those truths.