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14 Summer 2015 The Mississippi Lawyer An Interview with Chief Justice William L. Waller Jr. WLW Well that would be the inverse of what I was just saying. We have a lot of problems with failure to designate the record critical parts of the record not being transcribed exhibits not being pres- ent. There are times when we can have the record supplemented but I think the gen- eral philosophy is that it is the appellants case or the appellees case. If they have not put whatever is so important into the record then we should not go back and get it. Also I see with increasing frequency that attorneys are citing things on the internet. That is okay for some second- ary sources. But if you are citing some internet source for a proposition of fact and your internet source is dated at some point after the trial then I am not looking at it because it was not before the trial court. I think younger attorneys have a tendency to grab something off the inter- net and stick it in the brief as an authori- ty when in fact it may not be an author- ity about anything. We also see attorneys wanting us to take judicial notice of things. Well I guess we can and we sometimes do. But that really should have been done at the trial court because that is where your fact-finder was that is where objections were supposed to be made. Not stating issues correctly not iden- tifying what is so important about the case and not explaining those points well in the summary of the argument those are some of the more common mistakes I see attorneys make. If it does not look like the attorney has taken time to pro- duce a good product then we may not take the time to read it. VLL Can bad writing lose a case and can good writing help win a close case WLW I dont know that writing style makes any difference to me. If it is not written very well but the points are being made and the law is cited then that is fine with me. I am not looking for something that is going to be published as a law review article. I am trying to look at content. VLL How important is oral argument to the judicial decision-making process WLW We have a lot of oral argument and it is not unusual for us to go two hours in it. I think it does assist in decid- ing cases and we do change our minds sometimes. I think it helps flesh out ideas particularly in the interpretation cases when we hear an oralist who responds to questions and we can test their position on a case or a statute. Also they can explain why we should follow a particular interpretation or why we should adopt what another state has done or not done. I think a well-articulated oral argument is very helpful. What is not helpful is what I call a jury-type of argument where you make allusions to this being the most unfair thing that has ever happened or some argument that the taxpayers do not deserve this. Those arguments may work with juries though I am not sure they even work with juries but they sure do not work with the justices. We are not interested in hearing that. When an attorney goes to argument he or she real- ly needs to be prepared needs to be familiar with the relevant cases and authorities and needs to be ready to dis- cuss them. Do not spring cases on us that we have not read. VLL Would you share some recom- mendations for presenting a good oral argument And common mistakes to avoid WLW I think that one thing to avoid is going into the facts. We have already read your facts. We are familiar with the case. What is really paramount is to decide what you think are your three best points. Start with your best point because our Court is a hot bench. You may get a sen- tence or two out and that may be all that you have. Once you have finished answering questions and even though you have not even started on your prepared remarks you may be asked to sit down because your time is up. Now on the other hand if you think X is your most important argument and sev- eral judges are raising concerns about Y then you need to address Y not X. If it seems that only one justice is interested in Y that gets more difficult. You may have to diplomatically get to your best point because you are trying to get five votes not one vote. In my experience there is usually more than one issue and there is usually more than one justice asking questions about a point that may not have been your top point so then you need to pay atten- tion what the judges are asking and try to answer the questions posed to you. Try not to look offended because they are get- ting you off-script. If an attorney has a question from a justice he or she needs to respond to that justice. If I ask a question I like the attorney to look at me when he answers the question. It is not a big deal. No one is going to lose a case over this. But I think it is a matter of deference and respect. We are all human. If the person argu- ing says Justice Waller Im glad you asked that question. Well everybody likes to hear their names and what works even better than that is if you can cite his or her cases. Justice Waller in Smith v. Jones you said this. That is pretty Peacemaker Mediation Arbitration LLC peacemakerLLC.com An attorney for forty years. Former Navy JAG J.D. With Distinction top 10 of class law review published. Ready to fill all your mediation arbitration and hearing officer needs. No charge for travel time. Weekend dates available. See httpwww.peacemakerLLC.com Preston Bo Rideout