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Arguing successfully in appellate courts

“Confidence, confidence, confidence” are the three most important qualities of a lawyer in order to argue successfully in appellate courts. A lawyer must exude confidence in walking to the lectern, in discussing the case, and in answering the judge’s questions. Without showing confidence, the lawyer will lose.

Avoid starting with a joke. It could fall flat.

Lawyers with a thick accent must get rid of it.  Lawyers with a funny pronunciation like saying “San Jose” as “San Hoosi” must correct it. Tape record your argument and have another without these problems hear it.

It is rare for appellate courts to schedule an oral argument. In most cases, the appellate court will simply state that the case is suitable for disposition without oral argument. On the day of the argument in one case, the judges announced that there was no need for additional argument. The appellant’s lawyer patted himself on the back, thinking that his brief had covered all the issues. His appeal was dismissed.

How to gain confidence
Lawyers must study the case thoroughly, know all the facts and the law applicable, read all the briefs and the cases cited by the parties and remember all their facts and the court’s decision, check the later history of the cases if they have been overruled or modified, and explain why the cases cited by the opposing party are inapplicable.

The lawyer should check the background of the judges. I checked their alma mater and their years of experience and compared them with mine. I determined whether they were conservative or liberal. I read samples of their decisions that I might cite.

I anticipated possible questions and prepared my answers.

On October 10, 2013, I had the privilege of arguing before the U.S. Court of Appeals, Ninth Circuit. A panel of three judges headed by the Chief Judge came to Honolulu to listen to oral arguments in about 20 cases out of hundreds appealed. Our case was the first to be heard and I was the first speaker.

“May it please the Court,” I greeted the panel. There is no need to say “Good morning” or “Welcome to Hawaii”. On the day of the argument, it was raining, so it would not have been appropriate to say those words. Conserve words. I was given only 10 minutes. “My name is Emmanuel Samonte Tipon, I appear for the defendant-appellant.”

Discuss issues ad facts briefly
The issues are whether criminal defense counsel was ineffective when he told defendant, who asked what would happen if he pleaded guilty to drug distribution, that (1) defendant “may” be deported although the correct answer was that he “will” be deported because distributing drugs is an aggravated felony and subject to mandatory deportation, and (2) defendant will be released after serving his sentence, although the correct answer was that he will continue to be detained until his deportation proceedings are concluded.

Defendant was with a group when one shouted that somebody wanted to buy drugs. Defendant became afraid and threw away a packet. Another picked it up and gave it to the one who shouted. He gave it to the buyer who turned out to be an undercover agent. Defendant and the others were charged with drug distribution.

The court-appointed counsel for defendant terrorized him by saying that if he fought the case and lost he would get 20-40 years but if he pleaded guilty counsel would negotiate a term of 12 to 18 months. If the defendant had been told the truth that he “will” be deported if he pleaded guilty and that the maximum sentence he could get was 24 months if he went to trial and lost, he would have gone to trial and might have won because a reasonable juror could conclude that he was “discarding” not “”distributing” drugs. Defendant was prejudiced because he spent four years in jail waiting for his deportation proceedings to be finished before being deported.

Discuss why case is significant
The mischiefs committed in this case are capable of repetition. Criminal defense counsel should be warned not to terrorize clients into pleading guilty by telling them an unrealistic maximum sentence if convicted. Counsel should be cautioned against giving immigration advice if they do not know immigration law, but should consult with an immigration lawyer.

State what you want from court
We ask the court to set aside the defendant’s conviction and order the Department of Homeland Security to bring him back because he was denied his constitutional right to effective counsel and suffered serious prejudice by being deported.

Listen to the audio recording of this case, 10-15195 United States v. Ramiro, at http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011368


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. and Sunday at 8 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)

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