Advocacy is a game of inches. Relatively small, frequently ignored things can have a profound effect on the trajectory of a case — particularly a close one. Many of my favorite hackneyed sports analogies — it’s a game of inches; he/she wanted it more than anyone else; they tried to sit on their lead — apply to persuasion as well. In this column, I will discuss a potpourri of small things, and not-so-small things, that can adversely influence how judges, or a panel of judges, view lawyers from the bench, particularly in arguments to the court. Some of what I have to say is obvious, but it bears repeating every now and then.
• 1. Opening words. In advocacy, as in life, first impressions are important. When we meet someone, on a conscious and unconscious level, we immediately start to form impressions and conclusions. Is the person credible? Is the person competent? Is the person professional? Do I trust this person? So when you rise to argue, be sure to be prepared. Prepare an opening that is succinct, focused and professionally delivered. There are many ways to approach your initial foray, but tried-and-true openers like this won’t hurt you: “Good afternoon, your honor(s). My name is Joseph Doaks, representing the appellant in this case. This entire case turns on one question, namely: Did the police have probable cause to search my client’s apartment? Based on the facts, and the controlling law, the answer to that question is no.”
