guide for your first appellate oral argument

PARDALIS & NOHAVICKA LLP 718.777.0400

GUIDE FOR YOUR FIRST ORAL ARGUMENT IN THE SECOND DEPARTMENT


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“ANOTHER KIND OF LAW FIRM FOR THE NEW DIGITAL AGE” 718.777.0400

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PREPARE, ANTICIPATE, AND VISUALIZEThere is a first time for everything in litigation. Getting called up from the ranks by the partner to handle oral argument of an appeal is a critical emotional event on the part of the assigning senior attorney and the lucky advocate – you.


PREP:

IMMERSE INTO THE FACTUAL AND LEGAL MATRIX OF THE CASE

• UNFORTUNATELY, YOU WILL NOT BE REMUNERATED WITH MONEY FOR THE UNGODLY AMOUNT OF TIME YOU PUT IN OFF-HOURS DURING YOUR INTENSIVE PREPARATION FOR THIS APPEAL; BUT THERE ARE NO WORDS FOR THE PERSONAL AND PROFESSIONAL REWARDS OF A PROUD PERFORMANCE IN AN APPELLATE COURT. EVEN IF YOU LOSE.

• READ THE DECISION BEING APPEALED THROUGH AN UNBIASED LENS.

• READ THE CASES CITED TO BE SURE THAT THE CONTEXT IS APPROPRIATE

• THEN READ THE RECORD MAKING REFERENCES TO WHAT THE MOTION COURT BELIEVED WAS IMPORTANT AND WHAT WAS IGNORED.

• WAS THE RESPONDENT’S ARUMENT IN THE LOWER COURT JUST EASIER TO EMBRACE?

• BE ABLE TO ARTICULATE THE ERROR IN THE MOTION COURT’S DECISION

• SEARCH THE DECISION; SPOT THE FLAW; PULL THE TRIGGER.

READ THE ENTIRE RECORD

PROBE THE DECISION APPEALED FROM

KNOW THE CASES RELIED UPON BY THE MOTION COURT

BE ABLE TO EXPLAIN TO PEOPLE WHO HAVE NOT STUDIED LAW WHAT THE CASE IS ABOUT (IF YOU ARE CITING CASES IN YOU EXPLANATION, YOU FAILED)

READ ALL OPPOSING BRIEFS

DISCOVER YOUR VOICE


ANTICIPATE THE QUESTIONS OF THE PANELTHINKING ABOUT THE CASE AS MUCH AS POSSIBLE WILL BRING TO THE SURFACE THE QUESTIONS THAT THE APPELLATE PANEL MAY HAVE FOR YOU. WHAT WAS THE ERROR?

WHAT ARE THE ISSUES OF FACT THAT PRECLUDE SUMMARY JUDGMENT?

WHAT WAS THE APPROPRIATE STANDARD OF REVIEW?

WHY WASN’T THIS POINT BROUGHT OUT MORE EFFECTVELY IN THE MOTION COURT?

THINK.


VISUALIZE YOUR PERFORMANCEVISUALIZATION IS A TECHNIQUE USED BY ATHLETES, ACTORS, DANCERS, MUSICIANS, AND MANY EXCELLENT LITIGATORS.

SEE YOURSELF STANDING UP AND APPROACHING THE PODIUM.

HOW WILL YOU SET YOURSELF UP BEFORE BEGINNING YOU ARGUMENT?

WHAT IS YOUR INTRODUCTION GOING TO BE?

WILL YOU SMILE?

WILL YOU BE USING GESTURES?

RUN IT THROUGH YOUR HEAD.


INTRODUCTION AT THE SECOND DEPARTMENT THE CALENDAR CALL BEGINS AT 10:00 A.M. SHARP.

THERE IS NO CHECK-IN UNLESS YOU ARE ARGUING AND YOUR NAME IS NOT INDICATED ON THE COVER PAGE OF THE BRIEF. IF THAT IS YOUR SITUATION, GO UP TO THE CLERK LOCATED ON YOUR LEFT AS YOU ENTER THE MAIN COURTROOM. HAVE YOUR CASE NAME AND CALENDAR NUMBER READY AND SIMPLY INFORM THEM THAT YOU WILL BE ARGUING.

DURING THE CALENDAR CALL WHEN YOUR CASE IS ANNOUNCED YOU STAND AND ANNOUNCE WHETHER YOU ARE THE APPELLANT OR RESPONDENT AND REQUEST THE AMOUNT OF TIME YOU NEED FOR ARGUMENT


MAY IT PLEASE THE COURT

• Good morning, Your Honors; and may it please the Court. My name is Joseph Nohavicka and I am appellate counsel for Zelouf International.

• We are requesting that the decision of Supreme Court Queens County, which granted summary judgment against Zelouf , be reversed.

• The core issue to be decided by this court is whether the 2004 Top Cove Stock Transfer from Bekas to River City was a fraudulent conveyance. Because the motion court conducted its analysis using a flawed framework, its conclusion was incorrect.

• This is a case about deceit as between the respondents Bekas and Valiotis. Zelouf, the appellant, is an innocent party; a merchant trying to get paid for goods delivere to companies owned by Bekas. While Zelouf was in the process of obtaining a judgment against Bekas, the Top Cove deal was architected by Valiotis. As a result of this plan, Bekas was disenfranchised of his only asset – 40 shares of Top Cove, now, by the way, worth millions. This deal also effectively prevented Zelouf from recovering payment on a debt over a decade old.

• This Court has already determined that Bekas had stated a claim against Valiotis, where Bekas claims that the Top Cove deal was fraudulent. Valiotis attempted to use the judical estoppel theory then the same way he is attempting to use it now; however, that theory was rejected sub silentio and should be rejected now.

• On a separate trip to this Court, it was determined that there existed a special relationship as between Bekas and Valiotis because of their past familial and business dealings, which puts the fraudulent conveyance analysis under a more discerning prism – because there is no arm’s length dealing.


SMILE AND BE POLITE

SO THAT IS APPROXIMATELY WHAT AN INTRODUCTORY STATEMENT LOOKS LIKE.

THE PANEL WILL PROBABLY HAVE A DIFFERENT VIEW AND START QUESTIONING YOU ABOUT WHAT THEY BELIEVE IS IMPORTANT.

ALTHOUGH IT IS IMPORTANT THAT YOU BRING TO THE COURT A SENSE OF GRAVITAS AND MEASURED CREDIBILITY, THERE IS ABSOLUTELY NOTHING WRONG WITH A POLITE SMILE BEFORE YOU BEGIN.

PROPERLY PLACED HUMOR CAN EVEN BE APPRECIATED


LISTEN TO THE PANEL AND PREVENT DEAD AIR

• If you are in the middle of a sentence and one of the justices begins to speak, shut down and listen carefully. The court is asking a question because they are struggling with something. If you are the appellant that is a good thing: it means they are considering an infirmity of consequence. If it is an infirmity in your argument you are being given a chance to shore it up. If it is an infirmity in your adversary's argument you are being provided with an opportunity to exploit it.

• When you have finished answering a question immediately jump back into your argument. Do not look at the other justices on the panel to get you back on track or to throw you a lifeline as you dangle in dead air. Move on: "I hope that answered your question; and that brings me to my next point...”

• Know when it is time to stop. When you have made your points, end it, thank the court for listening, and sit down.


NO FEARORAL ARGUMENT IS A FRIGHTENING PROSEPECT.

THE RETURN ON PUTTING YOURSELF THROUGH THE PROCESS IS BEYOND MEASURE.

THE RETURN OF HAVING THE COURAGE TO GUIDE AN ASSOCIATE ATTORNEY THROUGH THIS PROCESS, LIKEWISE, IS BEYOND MEASURE.

HOW ELSE ARE OUR YOUNG ATTORNEYS GOING TO LEARN HOW TO PRACTICE APPELLATE LAW UNLESS THE EXPERIENCED PRACTITIONERS ARE WILLING TO SHARE COURT TIME?


WE WILL PREPARE TOGETHER TO MAKE OUR PROFESSION STRONGER AND OUR SERVICE TO THE PUBLIC MORE EFFECTIVE.


TECHNOLOGY IS QUICKLY REDEFINING THE GLOBAL LAW PROFESSION.


SHARING KNOWLEDGE WITH THE BAR AND PROVIDING TO THE PUBLIC FULL ACCESS TO JUSTICE AND WITH THE KEYS TO UNLOCK THE MYSTERIES OF

LAWCRAFT IS NOW THE BUSINESS OF THE LAW.

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GOOD LUCK WITH YOUR FIRST ORAL ARGUMENT.

“ANOTHER KIND OF LAW FIRM FOR THE NEW DIGITAL AGE.”

guide for your first appellate oral argument

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