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| Acknowledgments | |
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| Foreword | |
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| Introduction | |
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| General Principles of Argumentation | |
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| Be sure that the tribunal has jurisdiction | |
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| Know your audience | |
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| Know your case | |
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| Know your adversary's case | |
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| Pay careful attention to the applicable standard of decision | |
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| Never overstate your case. Be scrupulously accurate | |
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| If possible, lead with your strongest argument | |
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| If you're the first to argue, make your positive case and then preemptively refute in the middle-not at the beginning or end | |
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| If you're arguing after your opponent, design the order of positive case and refutation to be most effective according to the nature of your opponent's argument | |
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| Occupy the most defensible terrain | |
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| Yield indefensible terrain-ostentatiously | |
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| Take pains to select your best arguments. Concentrate your fire | |
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| Communicate clearly and concisely | |
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| Always start with a statement of the main issue before fully stating the facts | |
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| Appeal not just to rules but to justice and common sense | |
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| When you must rely on fairness to modify the strict application of the law, identify some jurisprudential maxim that supports you | |
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| Understand that reason is paramount with judges and that overt appeal to their emotions is resented | |
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| Assume a posture of respectful intellectual equality with the bench | |
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| Restrain your emotions. And don't accuse | |
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| Control the semantic playing field | |
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| Close powerfully-and say explicitly what you think the court should do | |
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| Legal Reasoning | |
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| In General | |
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| Think syllogistically | |
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| Statutes, Regulations, Ordinances, Contracts, and the Like | |
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| Know the rules of textual interpretation | |
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| In cases controlled by governing legal texts, always begin with the words of the text to establish the major premise | |
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| Be prepared to defend your interpretation by resort to legislative history | |
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| Caselaw | |
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| Master the relative weight of precedents | |
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| Try to find an explicit statement of your major premise in governing or persuasive cases | |
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| Briefing | |
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| Introduction | |
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| Appreciate the objective of a brief | |
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| Preparatory Steps | |
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| Strengthen your command of written English | |
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| Consult the applicable rules of court | |
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| Set timelines for the stages of your work | |
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| In cooperation with your opponent, prepare the Joint Appendix | |
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| The Writing Process | |
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| Spend plenty of time simply "getting" your arguments | |
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| Outline your brief | |
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| Opening Brief | |
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| Responding Brief | |
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| Reply Brief | |
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| Petition for Discretionary Review | |
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| Response to a Petition for Discretionary Review | |
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| Sit down and write. Then revise. Then revise again. Finally, revise | |
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| Architecture and Strategy | |
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| Know how to use and arrange the parts of a brief | |
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| Questions Presented | |
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| Statement of Parties in Interest | |
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| Table of Contents; Table of Authorities | |
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| Constitutional and Statutory Authorities | |
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| Statement of Jurisdiction | |
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| Introduction or Preliminary Statement | |
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| Proceedings Below | |
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| Statement of Facts | |
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| Summary of Argument | |
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| Argument | |
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| Conclusion | |
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| Appendix | |
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| Advise the court by letter of significant authority arising after you've filed your brief | |
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| Learn how to use, and how to respond to, amicus briefs | |
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| Writing Style | |
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| Value clarity above all other elements of style | |
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| Use captioned section headings | |
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| Use paragraphs intelligently; signpost your arguments | |
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| To clarify abstract concepts, give examples | |
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| Make it interesting | |
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| Banish jargon, hackneyed expressions, and needless Latin | |
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| Consider using contractions occasionally-or not | |
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| Avoid acronyms. Use the parties' names | |
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| Don't overuse italics; don't use bold type except in headings; don't use underlining at all | |
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| Describe and cite authorities with scrupulous accuracy | |
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| Cite authorities sparingly | |
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| Quote authorities more sparingly still | |
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| Swear off substantive footnotes-or not | |
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| Consider putting citations in footnotes-or not | |
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| Make the relevant text readily available to the court | |
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| Don't spoil your product with poor typography | |
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| Oral Argument | |
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| Introduction | |
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| Appreciate the importance of oral argument, and know your objectives | |
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| Long-Term Preparation | |
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| Prepare yourself generally as a public speaker | |
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| Master the preferred pronunciations of English words, legal terms, and proper names | |
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| Master the use of the pause | |
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| Preliminary Decision: Who Will Argue? | |
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| Send up the skilled advocate most knowledgeable about the case | |
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| Avoid splitting the argument between cocounsel | |
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| Months and Weeks Before Argument | |
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| Prepare assiduously | |
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| Learn the record | |
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| Learn the cases | |
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| Decide which parts of your brief you'll cover | |
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| Be flexible | |
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| Be absolutely clear on the theory of your case | |
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| Be absolutely clear on the mandate you seek | |
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| Organize and index the materials you may need | |
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| Conduct moot courts | |
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| Watch some arguments | |
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| On the eve of argument, check your authorities | |
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| Before You Speak | |
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| Arrive at court plenty early with everything you need | |
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| Make a good first impression. Dress appropriately and bear yourself with dignity | |
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| Seat only cocounsel at counsel table | |
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| Bear in mind that even when you're not on your feet, you're onstage and working | |
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| Approach the lectern unencumbered; adjust it to your height; stand erect and make eye contact with the court | |
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| Substance of Argument | |
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| Greet the court and, if necessary, introduce yourself | |
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| Have your opener down pat | |
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| If you're the appellant, reserve rebuttal time | |
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| Decide whether it's worth giving the facts and history of the case | |
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| If you're the appellant, lead with your strength | |
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| If you're the appellee, take account of what has preceded, clear the underbrush, and then go to your strength | |
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| Avoid detailed discussion of precedents | |
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| Focus quickly on crucial text, and tell the court where to find it | |
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| Don't beat a dead horse. Don't let a dead horse beat you | |
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| Stop promptly when you're out of time | |
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| When you have time left, but nothing else useful to say, conclude effectively and gracefully | |
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| Take account of the special considerations applicable to rebuttal argument | |
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| Manner of Argument | |
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| Look the judges in the eye. Connect | |
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| Be conversational but not familiar | |
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| Use correct courtroom terminology | |
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| Never read an argument; never deliver it from memory except the opener and perhaps the closer | |
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| Treasure simplicity | |
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| Don't chew your fingernails | |
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| Present your argument as truth, not as your opinion | |
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| Never speak over a judge | |
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| Never ask how much time you have left | |
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| Never (or almost never) put any other question to the court | |
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| Be cautious about humor | |
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| Don't use visual aids unintelligently | |
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| Handling Questions | |
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| Welcome questions | |
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| Listen carefully and, if necessary, ask for clarification | |
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| Never postpone an answer | |
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| If you don't know, say so. And never give a categorical answer you're unsure of | |
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| Begin with a "yes" or a "no" | |
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| Never praise a question | |
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| Willingly answer hypotheticals | |
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| After answering, transition back into your argument-smoothly, which means not necessarily at the point where you left it | |
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| Recognize friendly questions | |
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| Learn how to handle a difficult judge | |
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| Beware invited concessions | |
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| After the Battle | |
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| Advise the court of significant new authority | |
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| If you're unhappy with the ruling, think about filing a motion for reconsideration | |
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| Learn from your mistakes | |
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| Plan on developing a reputation for excellence | |
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| Sources for Inset Quotations | |
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| Recommended Sources | |
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| Index | |