‘You’re really there to answer the judges’ questions’

The Hon. Mark Davis authored hundreds of decisions when he served on the North Carolina Supreme Court and the North Carolina Court of Appeals, and about 80% of the time, his vote in closely decided cases was based on written briefs filed with the court.

But that other 20%? In one out of every five cases? A strong oral argument by effective appellate attorneys flipped his views on complicated questions of law.

Davis, Elon Law’s Visiting Distinguished Jurist in Residence who returns to the bench this summer with the North Carolina Business Court, presented May 11 on the “do’s and don’ts” of oral arguments when he met via Zoom with first-year Legal Method & Communication classes.

“Oral arguments, both as a lawyer and as a judge, have been my favorite part of the process,” Davis said. “There’s something very pure about it. You’re not reading paper anymore. It’s the lawyers and the judges. That’s it. The case has been ongoing for months or even years, and it’s come to this.”

What should students consider when preparing for oral arguments?

• Write bullet points on notecards listing every issue in your appeal. “You’re going to be constantly interrupted with question,” he said. “With every issue, you’re going to need to come up with the key points you’ll have to make.”
• Spend time practicing. “I would practice anywhere from 20 to 40 times in the days leading up to argument,” he said. “It’s also great if you can practice in front of colleagues or the attorneys you work with or even your significant others. Get them to give you honest feedback on things they like or didn’t like.”
• Be humble. “Admit if you don’t know the answer to a question,” he said. “We’re all human and sometimes our minds go blank. That’s going to happen to you at some point in your career. Judges understand it. They’ve all been there. Don’t freak out or panic. All you have to say is ‘Your honor, I apologize. I don’t know the answer to your question.’”
• Be respectful. “Don’t talk over the judges when they’re asking questions,” he said. “You’d be amazed how often this happens.” When you speak over a judge, you may miss an important part of a question, and an opportunity to assuage their troubles with a case.
• Master the record on appeal. Davis said it is not unusual for an appellate lawyer not to have handled a case at trial, but that doesn’t mean she or he shouldn’t have a full understanding of the facts and history of the case. “Your client is expecting you to fully learn what happened,” he said, “and the appellate judges don’t really care whether you were in it from the ground floor or whether you were brought in on appeal.

Other points he touched upon: Don’t speak too fast, avoid hyperbole, use visual aids if appropriate, don’t repeat arguments – and know the standard of review in the case.

Before joining the Court of Appeals, Davis worked as general counsel in the Office of the Governor, and he served as Special Deputy Attorney General in the Special Litigation section where he defended constitutional challenges to North Carolina statutes while handling lawsuits brought against state agencies.

From 1993-2006, Davis practiced at Womble Carlyle Sandridge & Rice where he represented local governments on a wide variety of issues and handled general tort litigation. Davis litigated more than 200 cases during his years with the firm and handled dozens of appeals in the U.S. Court of Appeals for the Fourth Circuit, the North Carolina Supreme Court, and the North Carolina Court of Appeals.

Davis also is the author of the 2019 book “A Warren Court of Our Own: The Exum Court and the Expansion of Individual Rights in North Carolina,” which explores the jurisprudence that evolved when former North Carolina Chief Justice James Exum, Jr. presided over the court from 1986 to 1994. Exum is a founding member of the Elon Law Advisory Board and a retired member of the Elon Law faculty.

The May 11 afternoon conversation on Zoom was moderated by Professor Sue Liemer.