“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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