I agree with conventional wisdom, which says that all things being equal, you can never win an appeal solely on oral argument, but you can lose. I have seen it happen, and not infrequently.
It’s why I used to tell my law clerks that even though one can learn a great deal from the best appellate advocates, one can learn even more from the worst.
In that spirit, here is a list of things not to do:
- Don’t neglect to hone your first sentence.
The first sentence is critical in an oral argument. It may be the last one you have control over until you sit down.
Having listened to countless oral arguments and read even more briefs, I believe that the most ineffectively utilized things are the first sentence in oral argument and the question presented section of the brief. The latter is a story for another day. But for the former, the goal should be short, sweet and specific.