I received this email the other day:
I may search your archives, but if you’re casting about for blog post ideas, I’d love to see a post geared toward those who are about to take the plunge for the first time on (or are otherwise new to) handling an actual appellate oral argument.
Challenge accepted. Here are ten things I wish that someone had told me before my first oral argument:
1. Answer the damn questions.
The single best use of your time at oral argument is answering the Court’s questions. The Court is deciding your case. What interests the Court is of primary importance to you by definition. Further, nothing seems to irritate a court more than ignoring a question. As Judge Kozinski famously noted, there’s really no substitute for annoying the people who control your fate.
On that note, I wish that someone had told me not to worry about sticking to my outline, couching my answers in terms of my themes, controlling the discussion, and so forth. Seasoned jurists will see through that anyway. Just answer the Court’s questions as directly, honestly, and concisely as possible.
Hopefully, that will be no more complicated than a yes, no, or JA citation. If the answer requires qualification then, as John Davidson likes to say, “Answer first, and then explain.” In other words, “Yes, unless . . .” or “No, except that . . .”
Everything else on my list is subsidiary to this point.
2. Start with the end in mind.
Your preparation will be much more focused if you clearly answer these questions for yourself at the outset:
- What I am asking for–that is, what is the mandate that I’m seeking, and what am I asking the Court to hold?
- Is the Court is a position to grant this relief, in light of the record and the procedural posture?
- Must the Court reach all of my points? Are they independent? Will deciding one dispose of the entire case?
3. Anticipate hard questions.
As soon as I start working on an appeal, I create a document called “Tough Questions.” This document includes every hard question I can think of, regardless of whether I can answer it. I update it constantly through the briefing and oral argument process. The goal is to anticipate every hard question the Court can throw at you, and prepare–and practice–your best answer.
4. Read these books.
These books have the best discussions of oral argument that I’ve read:
- Winning on Appeal by Ruggio J. Aldisert
- The Curmudgeon’s Guide to Practicing Law by Mark Hermann
- Making Your Case by Antonin Scalia and Bryan Garner
I wish that somebody had made me sit down and read the pertinent sections of them before my first argument.
If I remember correctly, Aldisert has an appendix in which seasoned practitioners share there preparation methods, and Hermann has a great discussion of how he prepares for oral argument. Personally, I follow a modified curmudgeon approach.
5. Know your role.
If you are doing it right, oral argument is really nothing of the sort. It is not an argument. It is a civil, almost academic, discussion. The proper tone is that of a conversation with a respected senior partner–that is, someone (1) more important than you who (2) knows more about the law than you do but (3) less about the specific facts of your case.
I work at a firm called Gentry Locke Rakes and Moore. Bill Rakes has been practicing law since
he signed the Magna Carta the early 1960s. In his spare time, he runs a bank. He has many pocket squares and tuxedoes.
An oral argument hits the right note if it sounds like a conversation between Mr. Rakes and me, in his office. Here are some things that I do not do in Mr. Rakes’ office:
- Raise my voice
- Wave my arms or jab my fingers
- Say “With all due respect”
- Tell jokes
- Deliver emotional jury arguments
- Attempt to weasel out of a question
- Speak after my allotted time has expired
- Speak informally–“Sorry I’m late. Btws, I’ve got to leave for my ironic kickball league in about 10.”
- Speak in stilted formalisms: “Thank you for your time and careful attention, Mr. Rakes. I have nothing further to add to your decisional process.”
Here is something else to remember: just like Bill Rakes, the Court knows more about the law than you do. But you know more about your case than the Court does. That’s generally where you add value to the conversation. By anticipating tough questions, you can have JA cites ready to direct the Court to key portions of the record that support your position.
Another part of knowing your role is looking at the case from the Court’s point of view. Appellate courts care about the rule of law that you’re asking them to fashion and how it will apply going forward. They like limiting principles. They’re also acutely aware of the limits on their power, like jurisdiction and preservation of error.
6. Watch the pros.
A great way to learn is to visit the court where you’ll be arguing in advance of your argument date. This way, you can get the lay of the land and a sense of the court’s attitude. You may see some excellent appellate arguments; you will surely see some terrible ones. Let this reassure you.
After seeing enough bad oral arguments, you’ll also notice that they tend to share one thing in common: they don’t tell the Court (or the audience) what the hell is going on. If you listen to an accomplished oral advocate argue–my partner, Monica Monday, and my friend, Steve Emmert, spring to mind–you will understand what the case is about and why they should win within 30-60 seconds. It will often sound something like this: “May it please the Court, my name is x. I represent y. This is a case about z. The trial court erred because/The dispositive issue in this appeal is . . . ”
7. Practice, practice, practice.
I find moot courts invaluable. I know that some people avoid them and prefer to speak extemporaneously. I also know that some people can dunk a basketball.
For a first-timer, there is no substitute for practice. It smoothes your transitions and prepares you for questions that you might not have anticipated. It also shows you that some phrases, which may have looked great on paper and sounded beautiful in your head, fall flat when spoken aloud. In the immortal words of Han Solo:
George, you can type this *#@%, but you sure can’t say it.
Also, note that I say “practice,” not rehearse. In Virginia state and federal courts, you will generally face hot benches; put slightly differently, rarely will you have a chance to deliver a prepared speech. It’s important to get used to taking your points out of order, and moving from one to another. Moot court will also train you to put your best point first, and get right to it, without dallying on the procedural posture or a detailed recitation of the facts.
Everyone gets nervous before an oral argument. No one is ever sure that they’ve learned the record, know every case, or anticipated every question.
9. Pay attention to logistics.
Arrive in town at least the day before your argument. Make sure that you allot yourself plenty of time to get to court. Do not overhydrate. Bring hard candy, which can help you avoid dry mouth without necessitating a trip to the restroom.
10. Sit down.
If there should come a point in your argument when you have made all of your points, stop. Ask the Court if it has any questions. If it does not, say thank you and sit down.
Finally, please remember: anything that doesn’t help, hurts.