As a follow up to our earlier discussion about oral argument, here are some additional thoughts from around the web.
Eugene Volokh spent a few posts last week blogging on Mayer Brown’s treatise on federal appellate practice, with items on oral argument here and here. These posts, and the comments they’ve generated, are worth your time. Two tips in particular get the De Novo (TM) seal of approval:
- Avoid dry mouth by popping a piece of hard candy while waiting your turn to argue (because water has unintended side effects); and
- When you have finished answering one judge’s questions, signal closure by turning your gaze to one of her colleagues on the panel.
Volokh/Mayer Brown also offer this advice for dealing with a judge/justice who won’t give up on a chain of questioning: “If, after several attempts to explain, the judge will not get off the issue, as a last resort, counsel can try ‘I am sorry, your Honor, but I have given the best answer I have, which I hope the court will find satisfactory.’” If you’re the appellant, you can also address this issue by explaining that you’ve given the best answer that you can, and offering to return to the point in rebuttal after checking the record/briefs/etc. Keeping in mind, of course, that the point of the entire oral argument exercise is to answer the Court’s questions.
Steve Emmert has a neat piece on oral argument, “What Not to Say.” Caution: as the unofficial dean of the appellate bar, Mr. Emmert can get away with things that you cannot. But his advice here is solid.
Steve says that a good oral argument should be like a conversation. I’d be a little more specific: it should be like a conversation with a respected senior partner–one who knows more about the law than you do, but less about the facts of this particular case and/or specialized area of the law. (I think I stole that analogy from Scalia and Garner.) You wouldn’t walk into a senior lawyer’s office to read a prepared speech about the case you’re working on, would you? No, you would not; if you did, he would know instantly that you are an idiot. Nor would you brush off his questions or tell him that you’ll get to them “later.” And you would probably make your presentation with the degree of deference and formality befitting an appellate oral argument. All in all, pretending that the Court can have you fired is a useful exercise.