The most critical part of getting ready for oral argument is anticipating the questions that you will get from the bench and preparing to answer them effectively.
To do that, as soon as I start working on an appeal I create a list of “tough questions,” which I continue to update through the date of oral argument. These are the questions that I expect (or am afraid) to get from the bench, based on the issues in the case and my experience with the jurists involved.
I also have a set of canned questions from Aldisert that I get ready to answer–not because anyone has ever asked me these questions in real life, but because thinking about them helps me to distill my argument.
In that vein, Colonel Louis J. Puleo has a neat article in the ABA Council of Appellate Lawyer’s Spring 2012 newsletter, Appellate Issues, in which he discuses preparing for oral argument. (HT John Bratt at Baltimore Injury Lawyer Blog.) He includes a list of 10 questions that counsel must be prepared to answer.
With a few exceptions, I’d group these along with Aldisert’s questions as things you should be prepared to answer not because you are likely to hear them at argument, but because if you can’t answer them then you probably don’t understand your argument.
Here are Col. Puleo’s “necessary ten”:
- What is the standard of appellate review, and what does that mean for the court’s review authority?
- What is your strongest/best position? If there are competing grounds upon which to rule, which one would you want the court to adopt, and why?
- What relief are you requesting, and what is the court’s authority to grant that relief?
- Is there a statutory or regulatory requirement or precedent compelling the court to adopt the position you’re advancing?
- (For government lawyers) Does your position require coordination with other agencies?
- Who has the burden during the appeal?
- What right/privilege has been infringed? Where does this right or privilege come from, and how has it been infringed?
- What is the prejudice or lack of prejudice?
- If you could write the opinion, what would it hold?
- Has the claimed error been preserved, waived, or forfeited?
If you’ve done a good job on your briefing, then you probably know the answer to these questions already–but you’d be surprised what you can overlook in your preparations.
I couldn’t tell you how many times I’ve sat on moot court panels, and thrown off an appellant with an even simpler version of 3: ”What are you asking us to do?” Sometimes they don’t even know; when they do know, you can have a lot of fun with this follow up: ”Can we do that?”
Nobody who’s practiced Co. Puleo’s questions will be stumped by that one.