Oral Arguments Guide for Counsel - page 10

7
GUIDE FOR COUNSEL, PART II
"forfeiture" rather than "waiver" was involved. The distinction was irrelevant, but the comment
generated more questions and wasted valuable time.
Be careful not to use the jargon of the military or Department of Veterans Affairs. Even if
the jargon is widely understood within those entities, the Court may not be familiar with it.
Similarly, during argument do not use the familiar name of your client. For instance, say: "Mr. Clark
timely filed the Notice of Appeal," rather than "Bob timely filed the Notice of Appeal."
Do not refer to an opinion of the Court by saying: "In Judge Bartley’s opinion." Rather, you
should say: "In the Court's opinion, written by Judge Bartley."
If you quote a document (e.g., a statute or regulation) verbatim, tell the Court where to find
the document (e.g., page 4 of the record of proceedings).
Attempts at humor usually fall flat. The same is true of attempts at familiarity. For example,
do not say something such as, "This is similar to a case argued when I clerked here."
Do not denigrate opposing counsel. It is far more appropriate and effective to be courteous
to your opponent. The Court has reprimanded counsel from the bench and in its opinion for
counsel's use of derogatory terms to refer to the opposing party. See
Lamb v. Peake
, 22 Vet.App.
227, 236 (2008).
Avoid emotional oration and loud, impassioned pleas. A well-reasoned and logical
presentation without resort to histrionics is easier for listeners to comprehend.
Do not argue facts (unless your point is that a Board finding of fact was clearly erroneous or
constituted clear and unmistakable error). Argue to the question or questions of law presented.
Counsel for the appellee are often effective when they preface their argument by answering
questions that appellant's
counsel could not answer or answered incorrectly or ineffectively. This
can often get you off to a positive start.
If your opponent is persuasive on a certain theme during argument, especially one that was
not anticipated, you should address that issue at the outset of argument or rebuttal argument rather
than adhere to a previously planned presentation. You take a great risk if you ignore a persuasive
point made by your opponent.
Rebuttal can be very effective. But you can be even more effective if you thoughtfully waive
it when your opponent has not been impressive. If you have any rebuttal, make it and stop. There
is no requirement that you use all your allotted time.
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