June 08, 2021


When I reviewed POINT WELL MADE, a NIITA 2016 publication, I wrote that it is a “wonderfully succinct text of 159 pages, it is packed with insight upon insight that individually and collectively will improve motions practice.  The authors have the know-how.  Nancy Viadik was a trial level judge and now is on a state appellate bench; and co-author Rebecca Diaz-Bonilla is an attorney and communications consultant.    Both teach for NITA.”  The book lived up to its sub-title – being a guide to “persuasive oral advocacy.”

So, now comes version 2 – longer and with a focus on appellate advocacy as well as trial and pre-trial motions.  The added scope brings added value, and while there are a few points worth critiquing, this should be an essential on every practitioner’s bookshelf.

Let’s start with the premise – a remake of Younger’s “Ten Commandments of Cross-Examination,” the book posits the following premises and builds its chapter structures around them:

  • Understand the audience (judge or judges)
  • Carefully prepare for arguments
  • Know the law, facts and theme
  • Understand questions and how to answer them
  • Integrate knowledge of the judge’s motivations into your argument
  • Have a good structure that starts and ends your argument strongly
  • Appreciate the opponent’s arguments so as to refute them
  • Master not only the substance, but the style
  • Practice your argument aloud
  • Become proficient in the “new normal” – remote arguments.

PWM, 4.

Here are just a few insights that confirm the book’s value.

  • “Know that judges want consensus. Appellate judges know that the law is better served when it is agreed upon – predictable.”  PWM 119
  • Because in a remote hearing even the slightest movement may be disruptive, “successful remote deliveries necessitate the virtual elimination of unnecessary words…fillers take the focus from the message.” PWM 249

There is special added value in the chapter on remote advocacy, including advice ranging from camera placement to taking advantage [court rules permitting] of the capacity to display exhibits during argument.

For appellate advocacy, especially valuable are the questions that one must anticipate when preparing for oral argument.  Among the most important are:

  • Are you proposing a new rule?
  • What rule of law are you proposing?
  • Does the rule expand or contract existing law? Is this a natural progression of the law?
  • …If we were to write the rule what would it look like?
  • How will the rule work?
  • How far will the rule go?
  • What are the real world consequences of the rule you propose?

PWM, 139-140.  Any lawyer who has not weighed these is under-prepared for oral argument.  The book also offers an extremely useful checklist for remote proceedings.

So, what is there to critique?  In its discussion of the science/art of rebuttal, PWM recommends pre-planning a rebuttal list of points rather than developing it as you listen to the appellee’s argument to avoid  “furiously taking notes” during argument which will only lead to “a less thoughtful and more disorganized rebuttal.”  PWM 196.  To the contrary, rebuttal must be in the moment, identifying egregious errors or misstatements of opposing counsel or addressing a concern raised by one of the judges.  The book fails further by approaching this from a 3-4 minute rebuttal design, when rarely is appellate rebuttal more than 2 minutes and often only 1.

A second, albeit minor, flaw is the reference to the Mehrabian contention that communication is 93% nonverbal (vocal and visual) and only 7% content.  PWM, 206.  Mehrabian rejects this:

Please note that this and other equations regarding relative importance of verbal and nonverbal messages were derived from experiments dealing with communications of feelings and attitudes (i.e., like-dislike). Unless a communicator is talking about their feelings or attitudes, these equations are not applicable.

http://www.kaaj.com/psych/smorder.html See also, https://www2.law.temple.edu/aer/brain-lessons-the-seven-percent-delusion/

Criticisms aside, there are too few guides to “persuasive oral advocacy.” POINT WELL MADE is an essential one – and its second edition is now an added asset to the library for appellate practitioners.