And we’re back after a short holiday break. I hope that you all were able to take a little time out of your schedules to enjoy the season.
For Christmas this year, Carrie got me The Curmudgeon’s Guide to Practicing Law by Mark Herrmann. It’s just perfect. If you haven’t read the book, I highly recommend it. Herrmann, of course, was until just recently one of the authors of the Drug and Device Law Blog and a partner at Jones Day. All of that pales in comparison to the sheer brilliance of The Curmudgeon’s Guide.
One of the book’s highlights is its chapter on preparing for oral argument. In just 10 pages, it offers as good a treatment of the topic as I’ve ever read. Many of Herrmann’s thoughts apply just as well to motions argument in trial court as they to oral argument in an appellate court.
So how does Curmudgeon prepare for an argument?
He drafts four outlines:
- A 1-2 page chronology of key facts. Curmudgeon does a chronology of key events in the case, with dates. He can use this as a study guide, and also to fact-check the other side’s argument from counsel table.
- An outline of key cases, with summaries of each. These are just the key cases–the ones the court might actually want to talk about–not all of the cases. There will rarely be more than 5-10 key authorities in a case, and they should be apparent from the briefs. Curmudgeon tries to limit his description of each to 6-8 words.
- A list of hard questions. Curmudgeon works up a list of the hardest questions about his case, irrespective of whether he can answer them. Then he works on the answers. It can be a big time investment, but it pays off when one of the questions comes up in argument, and he can answer–citing the JA chapter and verse, and even throwing in the odd quotation.
“They all think I’m Einstein, when all I am is Curmudgeon.”
- A 1-page outline of his argument. With very few words.
Armed with these outlines, Curmudgeon rehearses his argument, several times, from his 1-page summary. He typically reserves “moot courts” for his more complicated arguments. When it’s time to deliver his argument, Curmudgeon brings only his 1-page outline with him to the lectern.
This is a fine way to prepare. I use many of the same outlines, although I incorporate them into my process at an earlier stage. For instance, I start my list of hard questions as soon as I start working on a case; I save it on as a Word document, and add to it as things occur to me. Similarly, I do my outline of key cases as part of my brief-writing process. In fact, I brief the really key ones at some length, law-school style, while I’m writing to make sure that I understand them.
And I confess that I’m not yet at the stage where I’m comfortable arguing with only a single sheet of paper in front of me. I like to prepare a large binder with everything I need, including my argument outline (as well as briefs, cases, the JA, and other outlines). I often bring that monster up to the lectern with me. It’s almost a sight gag, but it certainly conveys the impression that I am prepared.
I do two additional outlines that did not make Curmudgeon’s list: I like to summarize the 3-5 best arguments for either side. Doing this honestly helps my with my list of tough questions, and it also lets me anticipate where the other side’s argument may go.