I have seen this scene play out countless times during oral argument. The lawyer representing the appellant takes the lectern and begins thus: "Your Honors, this case arises from a slip and fall on the sidewalk outside the defendant's grocery store. We moved for summary judgment and defendant cross-moved for summary judgment too. Unfortunately, the court below granted summary judgment in favor of the defendants. We appealed because Judge McGillicutty did not consider relevant evidence in favor of my client. Specifically, we believe this decision was erroneous because ..."
The lawyer's opening statement is so gripping that a member of the panel inevitably interjects: "Counsel, we are familiar with the basic facts and procedural history. Let's get to the argument." At this juncture, the lawyer will heed the judge's request and get to brass tacks; lawyers of a lesser caliber, meanwhile, will persist in delivering their prepared remarks.
With precious few minutes available for oral argument - appellate courts routinely bargain the attorneys down to as little as five total minutes - why attorneys insist on opening with bland, unimaginative "arguments"such as the one above remains a mystery.
Pull the panel into your argument: "Your Honors, the court below erroneously granted summary judgment in favor of the defendants because it improperly discounted evidence that created an issue of fact on the issue of liability. On page 72 of the record, defendant admits that...."
Crisp and to the point. Open strong.