Oral Arguments Guide for Counsel - page 10

GUIDE FOR COUNSEL
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your argument. Conceding when appropriate gives you greater credibility with the Court with
regard to the rest of your argument.
Do not "correct" a Judge unless the matter is essential. In one case before the U.S. Supreme
Court, a Justice asked a question and mentioned "waiver." Counsel responded by stating that a
"forfeiture" rather than "waiver" was involved. The distinction was irrelevant, but the comment
generated more questions and wasted valuable time.
Be careful to use precise language and wherever possible avoid use of obscure or fancy
words.
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.
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