Appellate Advocacy, Bench Trials, & Arbitrations

Non-Jury Proceedings: Appellate Arguments, Bench Trials and Arbitrations

Delphi is uniquely qualified to assist in appellate cases, bench trials, arbitrations, and other non-jury proceedings results. Delphi consultants have participated in prestigious moot courts at Georgetown’s Supreme Court Institute and the National Association of Attorney Generals.  We have been fortunate to be involved in the preparation of some of our nation’s top advocates. 

Experience in appellate cases led to our involvement in multi-billion dollar arbitrations and high stakes bench trials where we combined appellate techniques with persuasive trial tactics.  Through our involvement in non-jury proceedings we learned juries, judges, appellate judges, and arbitrators all face the same fundamental problem.  When presented with a legal problem and competing solutions to that problem, the appellate justice, trial court judge, or arbitrator must determine a difficult resolution.  In reaching a solution, justices, judges, and arbitrators often rely upon the most persuasive advocate to guide them toward a resolution.  Based upon these experiences, our consultants have acquired a unique skill set that will elevate an advocate’s argument when it matters most.  

Human Audience, Human Solution, and Human Narrative

Our consultants have interviewed justices and judges in pursuit of improving advocacy and we regularly hear three primary grievances.  First, justices and judges complain that advocates too often advance confusing overly technical arguments, forgetting that the judges or justices may not have a similar technical background.  Second, they explain that advocates may be quick to identify a legal problem, without offering a practical human solution to resolve the problem.  Third, justices and judges grow annoyed when advocates lack familiarity with the trial record and cannot speak to the human narrative they are responsible for crafting.  These concerns do not surprise us because we often work with trial attorneys to simplify a case for jurors, offer them a reasonable solution, and anticipate any questions jurors may have about the case.  As trial consultants we help advocates focus on human areas of persuasion they may have overlooked, and our fresh eyes bring new perspectives to a technical argument.

Credibility is Critical

Persuasive communication relies on the speaker establishing credibility with his or her audience.  In an appeal, credibility not only relies on an advocate’s technical understanding and willingness to acknowledge weaknesses in a case, but also on the organization, execution, and dexterity with which he or she addresses arguments, answers questions from the Court, and effectively pivots from distracting or unfavorable questions. We work with advocates to develop strategies to respond to a case’s difficult questions while emphasizing the most persuasive arguments.  Most importantly, we ensure the advocate offers a credible and favorable solution to the legal problem before the Court, because at the end of the case, we want the justices or judges trusting our advocate’s guidance and adopting his or her resolution.  

Preparation Matters

Credibility relies on an advocate’s preparation for oral arguments and we find that the top advocates prepare relentlessly for oral arguments often conducting up to five moot courts before arguing to the Court.  However, painful as it is, we have also watched well-credentialed advocates, including former appellate judges and past Supreme Court clerks, fail in oral arguments, in part because they believed a moot court was unnecessary preparation.  A perfect oral argument delivered the first time is an exception, more commonly a perfect oral argument results from exceptional preparation.  We have been involved in a wide variety of moot courts at different stages of readiness and we can guide an advocate’s preparation to ensure the highest level of preparedness.

Moot Court Designs

For many advocates and attorneys, moot courts have changed little, in part because the act of appellate advocacy has remained largely unchanged.  Generally, an advocate will recruit law partners to listen to the argument, ask questions and provide feedback.  We have improved upon this basic form of preparation with sophisticated moot courts that test the substance of the arguments.  Importantly, social science research techniques and audio-visual technology have led to significant moot court design changes that have reduced participant costs and enabled advocates to anticipate questions in oral arguments simply on the basis of the briefs.  Working with the advocate, we commonly employ one of four types of moot court designs.  The design we use is determined by the stage of the appeal or bench trial and the advocate’s preparation goals.

GraPhics and Visuals

“Why do the jurors get all the shiny fun technology and graphics?” a former appeals court judge lamented when asked about improvements in advocacy. Rare in appellate cases, but not uncommon in bench trials, arbitrations, or regulatory hearings, we encourage advocates to employ graphics and technology to benefit his or her audience’s understanding of a case.  Our consultants work with advocates to prepare persuasive graphics to enhance oral arguments and in turn an audience’s understanding of technical or challenging information. Much like jurors, judges appreciate well organized and entertaining presentations which increases the persuasiveness and effectiveness of an advocate’s presentation.