Inspired by and with apologies to others, I offer these tips from my own experience and stuff I've seen or heard. I would make it a Top 10 list, but then I've only argued 8 appeals.
1. Duct tape beats no tape. Years ago, Kurt Pomrenke had a case where the Fourth Circuit clerk's office sent back the opposing party's briefs because the staples were uncovered, so opposing counsel covered them with duct tape and sent them back, and that evidently worked. Check the Rules before trying this yourself.
2. Don't leave after the first question. In one case I know about, counsel for the appellee said in response to the first question, that's all I have, and I don't feel well, and then he turned around and left. There was no rebuttal.
3. Avoid fire alarms. In one of my cases, the fire alarm went off during the other side's argument. The presiding judge said, I think we have to treat this as real. So, all the lawyers trudged out to Bank Street or whatever is behind the courthouse. My client was there. I never asked him if he pulled the switch. Anyhow, after we all got back inside, opposing counsel got some extra time, but neither he nor the judges seemed to have much interest.
4. Be careful with the words and names. In one argument I watched on C-SPAN, the lawyer was dismayed to realize that he had just made some bold declaration about the "Ninth Circus." All those present who were members of the Circus laughed aloud, but I think that guy lost the case. Coincidence? On the other hand, everyone recalls that guy in the Bush v. Gore case who mangled all the justices' names, adding in the names of former justices, before Justice Scalia helped him out with an introduction, "I'm Scalia." That guy got some laughs but I think he was on the winning side.
5. "Mr. Minor, what you're saying can't possibly be true." If Justice Compton says something like that to you, probably it is not going well, or at least that's been my experience. Indeed, according to the (unpublished!) opinion I got back in that case, what I was saying was not true at all, which seemed to me a shame, after I'd gone to the trouble of convincing the circuit court that it was true.
6. The best way to find out about an opinion is when you are at the beach. One time I called into the office while I was on vacation and found out that the Fourth Circuit had ruled in my favor and the Kingsport paper wanted to talk to me about it. So, I kept on driving, with no shoes and no shirt, calling everybody on my car phone and laughing and waving at strangers and nobody seemed to mind. This almost never happens when I am at the office. I'm not sure if this rule works as well for somebody like Steve Emmert, who is at the Beach every single day.
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