Lessons from today’s oral argument at the Court of Appeals

25 04 2012

The Arkansas Court of Appeals heard oral argument today in Fischer v. Smith.  The case dealt with the issue of whether the custodial parent can relocate with the child.  The three judge panel was composed of Judges Hart, Gruber, and Glover.  Below are some lessons committed by even the seasoned attorneys appearing before the Court today.

  • Have a theme!  It cannot be stressed enough.  The appellant did not have a theme and instead had probably 200 disjointed points and facts for the Court without theme or structure of how to apply these facts.
  • Talk about the law!  The primary reason the Court accepted argument today was to deal with the application of the burden in relocation cases.  Instead, the appellant spent 99% of her time dealing with specific facts.
  • Do not speak over the judges!  The appellee interrupted and spoke over the three judges continuously.  This is a serious error.  You are there to convince and instead you are creating enemies.  No one likes to be interrupted so do not do it.  Be quiet as soon as they look like they are about to speak.
  • Know the facts!  The appellee responded to several questions with the assertion that he did not know because he was not the trial attorney.  You represent the client on appeal and your job is to know all of the facts.  If it is not in the record then you respond with that.  Otherwise, you should know it.
  • Recognize what the judge is asking!  Each party failed in this regard multiple times.  The appellee defended a failed drug test by commenting that the test is subject to many failures and the trial court is aware of that.  Judge Hart noted that the only thing in the record is the test.  The appellee stated that it was in the record, but missed the point that all of his talk about the failures of the drug testing system cannot be found in the record.

These are all common mistakes.  I certainly do not think the attorneys today did a poor job, but seeing the mistakes other attorneys make can help us all to improve.  


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