I have a pretty idiosyncratic approach to preparing for oral argument, which is full of ideas that I’ve borrowed from people over the years. And also the stuff that I’ve downright plagiarized from David Frederick.
We’ve talked about some of these ideas, like argument blocks and various outlines, in the past.
One of the final steps in my preparation is a series of games that I play after I’ve outlined my argument, drawn up my argument blocks, and sketched my answers to tough questions.
These games test how well I’ve prepared, and they’re also kind of fun:
- What’s your support for that, counsel? This is a favorite. When I’m rehearsing an argument or answer, I’ll stop myself at a random spot and pretend that a judge or justice has just asked me some variation of “What’s your support for that, counsel?”–for example, “Where can we find that in the record?” or “Have we ever said that in a case before?” If I can’t answer from memory or find the answer immediately in my podium binder, I lose the game. This helps me test whether my chronology, argument blocks, and argument outline are sufficiently detailed, and also whether I’m mentally prepared. What’s more, these questions come up in real life. I got one from Justice Mims yesterday. (The answer was JA 79.)
- What’s the worst that could happen? I try to come up with a pithy formulation of the parade of horribles that would ensue if the court adopted my opponent’s rule. You never know when that could come in handy. 75-word limit, and extra points for gruesome verbs like “gut,” “eviscerate,” or “emasculate.” I’ve never been able to us the last one with a straight face, and the first two are a little hackneyed–but when you only have 15 minutes to make a point, the occasional cliche can be helpful.
- How would you explain this to a seven-year-old? Self explanatory. If I can’t explain the case to Caroline, then I don’t understand it and probably won’t be able to argue it very effectively. Concerns that she will age out of the contest are unfounded, as Jack and Cricket wait eagerly in the wings.
- If I were a judge, what would bother me about this argument? This is the flip side of “What’s the worst that could happen?” Appellate judges always have one eye on the next case, so it’s useful to put yourself in their shoes: Listen to your own argument and try figure out what wouldn’t sit well with a judge crafting a precedential opinion. Extra points for creativity–will your FLSA argument cripple the family farm, which has always been the backbone of American society? Appellate judges are endlessly creative.
- Moot court. I find some version of a moot court to be absolutely essential. Depending on the needs of a particular case, my moots range in formality from getting some smart people together at the same table to discuss a case to hiring a real live appellate judge to sit on our panel. There’s just no way that I’m smart enough to do this stuff on my own.
If I can win these games, then I can at least convince myself that I’m ready for the argument.