The Seventh Circuit’s Judge Posner wrote a Tips from the Trenches column for the ABA in May. The article was well written and insightful, no surprise from Judge Posner. He summed up his advice like this:
be brief, be clear, be simple, be vivid, be commonsensical, avoid legalisms, and do not be afraid to spoon-feed us—we will not bite your hand.
He also provided more detailed advice. Here are my favorites:
- Use visual aids. But he suggests pictures or objects instead of charts or graphs. People (and judges are people, although litigators sometimes forget they are) connect with and remember images better than words or statistics, especially when they see the demonstratives quickly and from a distance.
- Admit when you do not know and concede when you must. Few things kill credibility like false statements, even unintentionally false ones, or refusing to admit the obvious.
- Rehearse. And not just by reading your materials and preparing notes. Set up a session as close to what you can expect as possible. You practice baseball by playing and running by running, practice argument the same way.
- Dress to be taken seriously. First impressions matter and the judge(s) see you both before and while they hear you.
Most of Judge Posner’s points apply to both district and appellate court arguments. The article is worth a read.