Don’t be combative like Sonny. Don’t be weak and spineless like Fredo. Instead, be cool and confident like Michael.
Oral Argument Preparation
I have spent a lifetime involved in sports, including over 20 years as a youth and high school football coach. I have learned that oral argument preparation is no different than game preparation. You don’t just draw up plays and hope to execute them on game day. You run them over and over and over in practice. You have certain plays for certain situations. You practice your two-minute drill, knowing you may have to roll into it if the situation presents itself. You would never think to just show up to the game with your head full of knowledge hoping it all works out on the field.
Same with oral argument. Don’t stand in court and hear your voice for the first time trying to articulate the argument. Rehearse it. And do so as much as you can in the conditions in which you will be delivering it: Not sitting at your desk with crap scattered around you mumbling to yourself. Do it on your feet, eyes up, outline down, projecting your voice, hearing yourself make the argument. I have a portable lectern that sits atop my desk at the office and at home for rehearsal. I stand behind it for hours, going through my argument, preparing for any kind of court—hot, cold, and lukewarm.
I also prepare flash cards—my appellate “burn stack”—containing questions (typically around 100 of them) that I may be asked, then I flip them and try to answer out loud to ensure I have answers and can articulate them with precision. My only rule is spare no absurdity. I think of hypotheticals to stretch my argument to the limits. And I articulate the answers, out loud. I will often enlist colleagues to come up with different questions to throw at me. They almost always come up with stuff I didn’t think of, and I walk through the answers with them. It can be as casual or formal as you want, a phone or office visit or a full-blown moot court—depending on the needs of the case.
In preparing for one argument a few years ago, I thought I was ready and had covered every possible issue and question. But following my regular procedure, I had a discussion with a colleague a few days before. He came up with a question that I never thought of. We worked through the best response. And as it turned out, that was a key question posed by a judge on the panel and I responded without a hitch and rolled into the next point seamlessly.
Some may say, well, that just takes too much time and the client can’t afford it. Chief Justice Roberts (at one time known as very expensive appellate advocate Roberts) once gave the best response to this type of thinking. He said, in effect, that he was never going to stand before the Court and explain that the answer to a justice’s question was “not in the budget.” All serious appellate advocates should take the same approach.
The Citation Wars: Cleaning up Quotations – Part 3
I wrote in a post back in January 2018 that the Utah Court of Appeals had joined the growing number of courts across the nation using the parenthetical (cleaned up). In a nutshell, (cleaned up) is used “to indicate that internal quotation marks, alterations, and/or citations have been omitted from a quotation.” State v. Cady, 2018 UT App 8, ¶ 9 n.2. A few months later, as I explained in this post, the Utah Court of Appeals adopted the parenthetical (quotation simplified) in place of (cleaned up).
The court of appeals explained that (quotation simplified) was now part of its internal style guide. See State v. Gonzales-Bejarno, 2018 UT App 60, ¶ 12 n.3. But Judge Mortensen remained steadfast in using (cleaned up) even after that pronouncement. See, e.g., Warrick v. Property Reserve, Inc., 2018 UT App 197, ¶¶ 6, 12, 18, and 19 (using (cleaned up)).
The matter was ripe for the Utah Supreme Court to weigh in. It now has. And the winner is (cleaned up). See Salt Lake City v. Kidd, 2019 UT 4, ¶ 14.
Though I have used (quotation simplified) in briefs to the Utah Court of Appeals, given the widespread use of (cleaned up) and the Utah Supreme Court’s apparent adoption of the parenthetical, it is likely the better choice. And if you’re still on the fence about whether to use the parenthetical at all, remember that the Bluebook gobbledygook—(citing this) (quoting that) (alternations original) (blah blah blah)—counts against your allotted number of words and lengthens each page of your argument with unnecessary verbiage and clutter. Get on board.
Don’t settle for average
“Make each day your masterpiece.”
John Wooden
Mediocrity surrounds us. Too many attorneys settle for average. They do just enough—nothing more. Are you one of them? Did you start out the New Year saying to yourself: “Every brief and motion I write this year will be absolutely average. Yes. In fact, I will wake up every day striving to be average and do just enough that I won’t get fired by my clients or sanctioned by the judge.” Of course not. No attorney should settle for average. This is a profession. This is your reputation. This is your client’s life or business. So to start the New Year I give you my favorite John Wooden quote, just a few words to remember as you work through each day—be it writing a brief, conducting a cross-examination, or whatever else: “Make each day your masterpiece.”
Avoiding Mistakes
Have you ever watched a post-game interview with a coach after a tough loss and heard something like this: “We just made too many mistakes …” It doesn’t matter the sport. Football, basketball, baseball, whatever. The turnover. The penalty. The error. The mental breakdowns. Just one at the wrong time can cost you everything. Multiple mistakes over the course of a game can add up and be just as costly. So it is in litigation. It is one thing to get beat because you have bad facts and law, things you can’t change. But it’s another to beat yourself because of unforced errors and mistakes. Just as in sports, there are remedies in litigation. A few tips:
- Slow down. When you’re in a rush you are more mistake prone than if you gave yourself the right amount of time to devote to the task. Have a schedule and keep to it. Don’t procrastinate every deadline. Give yourself enough time to recognize mistakes before they head out the door.
- Be disciplined. Focus on the task at hand, not all the other distractions around you. One thing at a time, in order. Think through it before you do it, file it, serve it, or send it.
- Don’t react. Respond.
- Finally, don’t get discouraged when things aren’t going your way. During the life of a case you will likely lose a hearing or motion; your witness will say something stupid during a deposition; and opposing counsel will act like a clown. If you let it get to you, your work will suffer and you’re more prone to make mistakes.
Conversing with Lawyers (Who Talk Like They Write): Date Night
Finally, it was Friday night and Betty was thrilled that her husband Don, a senior associate at Mega Firm, would make it home by 7:00 so they could go out to dinner together. Don finally arrived. They jumped in the Audi and sped off down the street. “Where should we go?” Don asked.
“You decide.”
“How about Chilis and/or Outback ….” Don responded. They may drive an Audi, but they still liked the chain restaurants. But Betty had a bigger problem: Where did Don want to eat?
“So, do you want Chilis or Outback?” she asked for clarification.
“Yeah, Chilis and/or Outback…”
“You want both?”
“I like both.”
“But where do you want to eat?”
“Don’t care.”
“Obviously. Just pick one.”
“I did–”
“You didn’t. You said Chilis ‘and/or’ Outback. That doesn’t make any sense. ‘Or’ would mean one or the other—that you’re fine with either; ‘and’ would mean that you want to go to both and that’s not going to happen.”
“Listen, I write contracts every day using ‘and/or’—it makes perfect sense. It’s in every form that I’ve read and used in the five years I’ve been at Mega Firm. Sterling Goodfellow uses it all the time and he’s a senior partner … has a 23,500 square foot log cabin near Bear Lake,” he glanced confidentally at her, then back to the road. “It’s a legal term.”
“It’s stupid. Take me home,” Betty demanded. At this moment she realized that her mom was right. She should have married Henry, an architect. He wasn’t afraid of commitment.
Accepting Criticism: The Declaration of Independence
If there was one thing Thomas Jefferson loathed, it was criticism. Thus, he was not at all pleased with the edits forced upon his draft of the Declaration of Independence. In this scene from the excellent HBO series John Adams, we see Franklin and Adams working over Jefferson’s prose. Franklin’s edits were modest, but included one of the most memorable phrases in the document. He took Jefferson’s original language, “We hold these truths to be sacred and undeniable,” and changed them to: “We hold these truths to be self-evident.”
As a group, lawyers—litigators in particular—refuse to seek out and accept criticism. That is a mistake. Whether it’s editing a brief for tone and clarity, testing an opening or closing argument, or whatever. Your goal as a lawyer is to persuade. The persuasive impact your work has is solely determined by the reader. Thus, seek out and accept criticism from others. Bring different points of view and experience to your work product. Don’t work in a silo. As we learned from Jefferson’s experience, the result typically ends up better than what you could have done on your own.
(Quotation Simplified)
As I wrote in a post back in January, in State v. Cady, 2018 UT App 8, the Utah Court of Appeals joined the growing number of courts using the parenthetical “(cleaned up)” to “clean up” citations to quoted material. A few months after Cady, in State v. Gonzales-Bejarno, 2018 UT App 60, the court used the parenthetical “quotation simplified” in place of “cleaned up.” Id. ¶ 12. With a nod to Cady, it noted, “[t]he court’s internal style guide has adopted the parenthetical “quotation simplified” in the spirit of the nascent “cleaned up” parenthetical.” Gonzales-Bejarno, 2018 UT App 60, ¶ 12 n.3.
Since then, the court has been liberal in its use of the parenthetical, as shown in the following cases:
- Kirkham v. McConkie, 2018 UT App 100
- State v. Guzman, 2018 UT App 93
- True v. UDOT, 2018 UT App 86
- State v. Norton, 2018 UT App 82
- State v. Brocksmith, 2018 UT App 76
- State v. Peraza, 2018 UT App 68
- Pulham v. Kirsling, 2018 UT App 65
- State v. York, 2018 UT App 90
- Gerwe v. Gerwe, 2018 UT App 75
- State v. Whitbeck, 2018 UT App 88
- Palmer v. St. George City Council, 2018 UT App 94
- NPEC LLC v. Miller, 2018 UT App 85
- Berrett v. State, 2018 UT App 55
- State v. Becker, 2018 UT App 81
- Blackhawk Townhouses Owners Ass’n v. J.S., 2018 UT App 56
- Munoz-Madrid v. Carlos-Moran, 2018 UT App 95
- State v. Rinehart, 2018 UT App 87
- State v. Mooers, 2018 UT App 74
- Basin Auto Paint Specialists Inc. v. Ultimate Autobody & Accessories LLC, 2018 UT App 72
- Boyle v. Clyde Snow & Sessions PC, 2018 UT App 69
So even as “cleaned up” grows in popularity with courts across the country, “quotation simplified” has become the parenthetical of choice in the Utah Court of Appeals for cleaning up quotations.
Object to the Form
Kate was only 37 minutes into her deposition when attorney Thurston Howell IV lodged his 23rd objection. And they were all the same: “Object as to form,” he would say with monotone arrogance as he doodled on his legal-size legal pad. She had had enough.
“What’s the form objection, counsel?” she asked.
He looked up, somewhat surprised that she asked. “It’s an objection to your question.”
“I get that,” she leaned in, “but what exactly is the problem with the form of the question?”
He looked at her in stunned silence. Was she serious? “Are you asking me to start making improper speaking objections?” He peered at her over the reading glasses perched at the end of his nose. “If so, you may want to take a break and consult the rules because they prohibit such things.”
Kate knew the rule. She graduated from a Big XII law school. “I understand what a speaking objection is, counsel. But the point of a ‘form’ objection is give the examiner a chance to cure the potential defect in the question. If all you can say is ‘object to the form,’ with no effort to explain—in three words or less—what the problem is, I’ll assume that it’s a great question that hurts your case or that you are just trying to interfere with the flow of my examination—“
Howell raised a crooked finger, “Look here—“
Kate wasn’t having it. “I know, I know … you read law at Yale with Blackstone or some other ancient oracle. But this is quite simple. ‘Object, compound.’ That’s a form objection. ‘Object, lacks foundation—also a form objection. Neither is improperly argumentative or suggestive.”
“Why don’t I make it easy for you,” Howell responded. “Let’s just agree to reserve all objections for the duration of this deposition. Would that satisfy your interpretation of the rules?”
It sounded appealing, but Kate was wise to the plan. She knew there would be no opportunity to cure the form of a deposition question at trial. “We’re not doing that, Mr. Howell. As you know, under rule 32, certain objections are reserved because some questions cannot be rephrased to cure any deficiencies. But a form objection raises an issue with the way the question is phrased and gives the examiner an opportunity to cure it. For example, to clarify a vague question or supply missing foundation. So you’re not reserving form objections. I am going to continue my examination, and if you have a form objection, I ask that you state the basis for it or make no objection at all.”
So who is correct in this situation? There is surely a difference between an objection that is improperly “argumentative” and “suggestive” because it instructs the witness how to answer (or not answer) and one that only points out the claimed defect in the question. To borrow from Kate, one that is three words or less. And is it ever appropriate to say “object as to form” over and over and over and over, never once giving any indication of what is wrong with the question even when requested? Would you do that at trial and not expect the court to ask you to be more specific? Surely not. But surprisingly, this debate still goes on.
If you practice in federal court in Utah, the debate is over. Local rule DUCivR 30-1 specifically addresses form objections during depositions. It provides that “[o]bjections during depositions to the form of the question must specifically identify the basis for the objection.” DUCivR 30-1 (emphasis added). “Objections to the form may include, but are not limited to, these objections:
- Ambiguous
- Vague or unintelligible
- Argumentative
- Compound
- Leading
- Mischaracterizes a witness’s prior testimony
- Mischaracterizes the evidence
- Calls for a narrative
- Calls for speculation
- Asked and answered
- Lack of foundation
- Assumes facts not in evidence
DUCivR 30-1. And if you are a fan of the Thurston Howell IV method, you’re sunk. The failure to state the basis for a form objection waives that objection. See id. (“If the basis for objection as to form is not timely made at the time of the question, the objection is waived.”). But keep calm, this is not an invitation to coach the witness. The rule concludes with an admonition: “Objections that state more than the basis of the objection and have the effect of coaching the witness are not permitted and may be sanctionable.” Id.
Kate takes this debate. What’s the form objection, counsel?
The Tenth Rule
The great Elmore Leonard’s Tenth Rule of Writing should be every lawyer’s first: “Try to leave out the part that readers tend to skip.”