Excellence in oral arguments subject of Section of Litigation CLE

"Develop a coherent and compelling theme," encouraged Lawrence D. Rosenberg of Jones Day at "The Advocate's Art: Appellate Arguments," one of the dozens of CLE programs offered at the Section of Litigation Spring Meeting held in Los Angeles April 19-22.

The session also featured Ken Starr and Walter Dellinger, as well as judges Raymond Fisher, Kim Wardlaw and Steve Colloton. Rosenberg, who organized the Appellate Arguments program, used Aristotle's "Rhetoric" as basis for explaining effective oral argument presentation. "The most important of Aristotle's advice for effective advocacy are his three basic principles: ethos, pathos and logos," Rosenberg said. Ethos involves evincing a personal character to make one's speech credible; pathos refers to the ability to stir the emotions of the listeners; and logos is the ability to prove a truth, or an apparent truth, through persuasive discourse.

Exploring ethos more in-depth, Rosenberg said that a lawyer can increase the perception of his or her personal character and credibility by being prepared, being likable, presenting an honest persona, being organized, and having a clear and understandable delivery during oral arguments.

"My college debate partner frequently referred to an addition to Aristotle's key components of rhetoric," Rosenberg said. "The concept to which he often referred is that of 'lame'os' – the speaker's power to make himself or herself look like an idiot." The inability to answer key questions in a case to either a judge or an ADR official is one way of doing just that.

This information served as the groundwork for a mock appellate argument between Dellinger and Starr, which addressed the issue of domestic surveillance. Dellinger, one of a host of former government officials and scholars of constitutional law who wrote to members of Congress expressing concern about the National Security Agency domestic spying program, argued that the current administration's use of domestic surveillance has violated the fundamentals of the Foreign Intelligence Surveillance Act, including the escape clause for a 15-day allowance after a declaration of war.

Supporting the administration's actions, Starr explained the extraordinary circumstances under which the White House is acting, and brought the language of the congressional resolution authorizing presidential action to the attention of the seminar's attendees. He also spoke to the issue of presidential precedence.

After the arguments, Rosenberg asked questions of the panelists. "How important is credibility and civility when arguing in front of an appellate court or the Supreme Court?" posed Rosenberg. Panelists commented on the positive impression they had of the lawyers when Starr and Dellinger addressed each other as "my learned colleague" and "my learned brother."

The second question was about the importance of credibility and responding directly to the judge's questions. In addition to responding directly, openness is extremely beneficial, as program attendees were appreciative of the argument when a debater said, "In all candor, that is my opponent's strongest point," and went on to explain why that argument was not fatal to his case.

The program provided a rare opportunity for attendees to witness oral argument at the highest level, argued by both sides on the merits with respect for the opposing side and with decorum.

Additional highlights of Litigation's Spring conference included a lunch keynote by Coach of the Year and Basketball Hall of Famer John Wooden, a program featuring Dr. Phil McGraw on "Theming the Case," and a session with trial expert Michael E. Tigar.

Rosenberg's written presentation is available for download as a PDF here. Other materials from the conference may be posted in the near future.

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