Montana Lawyer October/November 2024

Cochenour emphasized the need to articulate “limiting prin ciples” in appellate arguments to ensure that the proposed rule is clear and does not lead to unintended consequences in future cases. Tatarka added that in government appeals, particularly in criminal cases, it is crucial to focus on the specific errors being challenged and recognize the high bar for overturning lower court decisions. Throughout the discussion, the panelists provided practical advice for appellate advocates. They emphasized the importance of preparation, the value of conducting moot arguments, and the need to present a coherent narrative that helps the court un derstand complex legal issues. Effective appellate advocacy, they noted, requires not only mastering the legal arguments but also understanding the judges’ perspective and adapting as needed during oral argument. The CLE offered a wealth of knowledge for both seasoned ap pellate practitioners and those new to the field, highlighting the unique challenges and opportunities of appellate advocacy.

noting the importance of limiting the scope of arguments to those necessary to the appeal. Tatarka also highlighted the criti cal role of the standard of review in appellate work. The speakers discussed the distinctions between different ap pellate courts, particularly between the Montana Supreme Court and the Ninth Circuit. Judge Johnstone provided insight into the Ninth Circuit’s process, noting that much of the case analy sis is done before oral argument, allowing the judges to focus on key issues during the hearing. Oral argument, he explained, often leads to quick deliberations, with cases frequently decided soon after the hearing. The role of oral argument in the appellate process was another key topic. The panelists stressed the importance of treat ing oral argument as a conversation with the judges. Advocates should respond directly to the questions posed rather than stick ing rigidly to pre-planned arguments. Judge Johnstone empha sized that oral argument is an opportunity for judges to clarify any remaining uncertainties about a case, and advocates must be prepared to engage in real-time dialogue.

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OCTOBER-NOVEMBER 2024

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