As a law clerk, I had the opportunity to observe hundreds of oral arguments, most of which were delivered by attorneys who were well prepared and some of which were not.\u00a0 I do not believe any of the attorneys who came before the Court ever believed they were unprepared.\u00a0 As it turns out, those who were unprepared just had a different understanding of what it meant to be prepared for an appellate argument.\u00a0 This edition of the Fast Five on Rhode Island Appellate Practice helps define what it means to be prepared for an appellate argument before the Rhode Island Supreme Court.\u00a0 <\/span><\/span><\/p>\n Perhaps the greatest strength an appellate advocate can have is organization.\u00a0 Delivering a concise and persuasive appellate argument in 30 minutes or less in a case that was pending before the trial court for years is difficult.\u00a0 It is even more difficult when five smart, seasoned jurists inquire about the intricacies of your argument.\u00a0 Being prepared means having your materials well organized and accessible so you can easily transition from point to point and readily locate the citation to an obscure case at a moment\u2019s notice.\u00a0 The surface of the lectern in the Rhode Island Supreme Court is 20 inches wide and 15.5 inches high.\u00a0 The ledge that keeps materials leaning upright on the lectern\u2019s surface is narrow.\u00a0 Be careful to ensure that the materials you bring to the lectern fit on the lectern and avoid shuffling too many papers.\u00a0 <\/span><\/span><\/p>\n For a variety of reasons, clients sometimes retain different counsel to handle their case on appeal.\u00a0 As a result, a familiar refrain in response to the Supreme Court\u2019s questioning is \u201cI don\u2019t know, Your Honor.\u00a0 I was not trial counsel.\u201d\u00a0 Often times, the question that prompts such a response is one that inquires about facts outside the record. <\/span><\/span><\/p>\n While the Supreme Court may only consider and review facts that are in the record, there are occasions when the Court will inquire about facts outside the record to put the facts that are in the record in context.\u00a0 Whether or not the appellate practitioner was trial counsel, he or she should be prepared to answer the Court\u2019s questions about facts outside the record.\u00a0 If a question requires you to reference facts that are not in the record, you should provide the answer but also advise the Court that such facts are outside the record.\u00a0 <\/span><\/span><\/p>\n Before stepping off the seventh floor elevator at the Licht Judicial Complex on the day of your oral argument, you should not only know the weaknesses in your argument, but also have anticipated questions about those weaknesses and prepared responses to those questions.\u00a0 If time and resources permit, a mock oral argument before colleagues or fellow practitioners can be a tremendously beneficial exercise.\u00a0 Chances are, the first questions you will receive from the bench will concern the weaknesses in your argument and having anticipated them in advance will ensure that your argument stays on track.\u00a0 <\/span><\/span><\/p>\n In Rhode Island, we are fortunate to have a very visible Supreme Court.\u00a0 The five justices of the Supreme Court are frequent participants at Rhode Island Bar Association Continuing Legal Education Programs and are present at many programs hosted by the legal community.\u00a0 Nevertheless, for those unfamiliar with the Court, being prepared for oral argument means knowing the composition of the Court and being able to reference the justices by name when responding to or referencing questions from the bench.\u00a0 \u00a0As a guide, the following photograph illustrates the order in which the Rhode Island Supreme Court justices sit for oral argument.<\/span><\/span><\/p>\n(1)\u00a0\u00a0 BEING PREPARED FOR ORAL ARGUMENT MEANS KNOWING THE SIZE OF THE LECTERN.<\/h2>\n
![\"Lectern\"](\"https:\/\/www.apslaw.com\/on-appeal\/wp-content\/uploads\/sites\/2\/2013\/10\/Lectern1.jpg\" "\\"\\"")
<\/a><\/p>\n(2)\u00a0\u00a0 BEING PREPARED FOR ORAL ARGUMENT MEANS KNOWING THE RECORD AND THOSE FACTS THAT ARE NOT IN THE RECORD EVEN IF YOU WERE NOT TRIAL COUNSEL.<\/h2>\n
(3)\u00a0\u00a0 BEING PREPARED FOR ORAL ARGUMENT MEANS KNOWING THE WEAKNESSES IN YOUR ARGUMENT.<\/h2>\n
(4)\u00a0\u00a0 BEING PREPARED FOR ORAL ARGUMENT MEANS KNOWING THE COMPOSITION OF THE COURT.<\/h2>\n