I had the pleasure of watching a day of oral argument at the Supreme Court of Virginia recently.
Because I was second-chairing an argument that my partner, Monica Monday, delivered, I was actually able to relax and pay attention to the other arguments.
Here are a few lessons that I gleaned:
- Don't Milk the Billy Goat. The theme of one appellee's argument is that the opponent was trying to milk a billy goat and make the Court hold the strainer. Or maybe the appellee had the strainer. I'm not really sure. "Milking the billy goat" is, of course, a reference to Kant's Critique of Pure Reason. It's the only joke in the treatise, and Kant stole it from Demonax of Cyprus (in violation, one assumes, of the categorical imperative). The gist of the reference is that asking an absurd question that doesn't admit of a rational answer embarrasses both the questioner and the respondent. You knew that, right? I didn't. I had to look the phrase up after the argument. At the time, I wasn't thinking, "Wow, what a smart lawyer." I was thinking something more along the lines of, "What the s*%#?" The line completely took me out of the flow of the argument, and left me pondering the mysteries of zoology rather than counsel's logic. (And seriously . . . what's the strainer for?) Judging from some bemused comments I heard from others in the courtroom, I wasn't the only one led astray. And thus the lesson: when in doubt, make your point in plain English.
- Know When to Stop Talking. This falls into the "easier-said-than-done" category, but I saw a number of lawyers who were winning their oral argument try to make one point too many, only to draw an unnecessary question from the Court. When you've said what you have to say to win, and it's clear that the Court understands your position, it's okay to stop talking. In fact, it probably conveys confidence in your position to sit down without using up every last minute of your time.
- Be Yourself. No need to impress people with, say, obscure references to Enlightenment philosophers. You don't need to convince the Court that you are smart, or a great orator to win. You don't even need to be particularly polished. You just need to have a pleasant, professional conversation about the case. Be yourself.
- Unless You're a Jerk. Of course, if being yourself requires you to take unnecessary jabs at opposing counsel (like pointing out that he's being paid by his client--yep, saw that one), or to talk over the justices, or to gesticulate wildly, you might consider being someone else. Paul Clement and Ted Olson would be good choices.
- Speak Up. The microphone in the SCV courtroom is for recordation, not amplification.
- Keep the Next Case in Mind. The justices will often ask hypothetical questions to test the limits of the rule you're advocating. That's because while they're deciding this case, they're already thinking about how your rule will apply in the next case. That's one of many, many reasons why it's always good to articulate a limiting principle for any rule that you propose. Also, it's not helpful to explain that the Court's hypothetical does not describe this case. That's what makes it hypothetical.
- Recognize Different Types of Questions. Different judges have different questioning styles. Justice Lemons favors questions that crystallize positions, either by testing them with hypotheticals or phrasing them in a pithy manner. Justice Mims will often ask direct questions that essentially articulate a position (presumably his position) to other members of the Court. Chief Justice Kinser tends to ask procedural questions about the mechanics of the appeal. These different types of questions need to be approached differently, as they present different opportunities and challenges for the advocate.
Finally, I'd be remiss if I didn't pass along congratulations to VSB/VBA member Patty Millett on her nomination to the D.C. Circuit. I had the pleasure of serving on a VBA committee with her a few years ago. She's eminently qualified and surprisingly funny.