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The California Appellate Law Podcast

Justice Thompson on Effective Oral Arguments: Give a “Different Spin”—And Answer Questions

Tim Kowal     October 28, 2022

Justice David Thompson sets up the oral argument Catch-22:

If the argument wasn’t in your brief, why wasn’t it in your brief?!

If the argument was in your brief, then why are you repeating yourself?!

This is at the heart of what Justice Thompson calls the perennial question about giving an effective oral argument.

In this discussion about oral arguments on appeal, Justic
e Thompson provides the solution: Identify the crux of the case. Try to present it in a slightly different way, putting a slightly different spin, perhaps to disarm the panel.

And be ready to answer any questions.

But don’t regurgitate. And don’t come up with a brand new theory of the case.

Watch the clip here.

This is a clip from episode 54 of the California Appellate Law Podcast. The full episode is available here.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

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