Have you seen this week’s Virginia Lawyer’s Weekly? First page, above the fold, is an article called “10 Steps for Preparing for an Appellate Argument” by Dawn Solowey, a tall-building lawyer from Boston. As longtime readers know that I’m a sucker for these articles.
Unfortunately, this one is an exception. It’s bad–preposterously bad, really, given the subject matter. And “bad” is a charitable description. We’re talking New York Jets bad. The Dark Tower trailer bad. Season 4 Sandsnakes bad.
It is, in short, the Jurgen Klinsmann of the appellate-advice genre.
Let’s start by unpacking the list. Here are the 10 steps:
- Review the briefs for what’s in them–and what’s not.
- Research the panel.
- Read your judges’ other opinions.
- Update your research.
- Read the key cases and have them at your fingertips.
- Prepare a longer-form outline.
- Prepare a list of “must-make” points.
- Anticipate the hardest questions.
- Get to know your clerk.
- Put yourself in the judges’ shoes.
The article elaborates on each point, but not in the depth that you’d expect.
First observation: This list leaves out moot courts and argument blocks, which are literally the two most helpful things that you can do to prepare for an oral argument. (The discussion of Step 8 does close with “Consider holding a ‘moot court’ with colleagues to practice answering difficult questions on your feet.” That’s not good enough. Yes, by all means, if you would like to win, consider mooting your argument. And you don’t do it get time on your feet. It’s a little late for that. You hold a moot court to get different perspectives, hear different questions, and sharpen your answers.)
Of those steps actually included on the list, Step 10: Put yourself in the judges’ shoes is the most important. The whole point of oral argument is to help the judges get to the correct result, and to do that you have to see things from their perspective. Everything else flows from this. It’s such a crucial part of the process that it’s worth starting your prep by sitting down a making a list called “Things That Will Bother a Judge About This Case.” How on earth is this Step 10?
Step 1: Review the briefs for what’s in them–and what’s not. Meh. I agree that it’s useful to study the briefs and to critically assess each side’s strengths and weaknesses. I disagree that you should “[t]ake detailed notes as you review the briefs, and use them to develop themes and an outline for oral argument.” Relying too heavily on your brief is a mistake. A brief is a written position statement. An oral argument is a conversation with some thoughtful men and women in robes. Though the two exercises share the same goal, they are necessarily and fundamentally different in terms of structure, emphasis, and even sometimes theme.
Steps 2 and 3 almost boil down to internet-stalking your panel and tailoring your presentation to them. That’s exactly why the Fourth Circuit doesn’t announce its panels before the day of argument. The Supreme Court of Virginia doesn’t tell you who will be on your writ panel before he day of argument, either. So from the outset, this is deeply weird advice to be giving Virginia practitioners. But even if these two steps were actionable in real life, I’m still not sure that they would be good idesa. Instead of trying to game the panel, aren’t you better off having a big-picture view of the judges and focusing your argument on the substance? I know that I’m happier going into an argument knowing my case and finding out on the day that my panel is made up of “Talky Originalist,” “Quiet Normalguy,” and “Funny Lady Murder Question,” for example, than being able to tell you in advance that, say, both Clinton and Bush appointed Chief Judge Gregory, who will be on my panel, or that panelist Chief Justice Lemons once spoke to Mick Jagger on the phone. (Okay, I lied. That last one makes me really happy. But you get the point.)
Also, trying to pitch your argument to the panel can backfire. Solowey recommends considering “whether there is language or a theme from a prior opinion of one or more of the judges that might make sense to highlight at argument.” But if that language or theme wasn’t highlighted until now and you’re using it primarily (or exclusively?) because of who wrote it, this could come off as gross pandering.
Step 4: Update your research. Well, yeah. You should update your research. If you need someone to tell you that, maybe appeals aren’t going to be your thing.
Step 5: Read the key cases and have them at your fingertips. Ditto.
Step 6: Prepare a longer form outline. I mean, I guess? Can’t hurt, might help. Oh, wait–it can hurt, because the last thing in the world that you want to do is to read an outline, even to a cold bench. So maybe Step 6 is not the absolute best use of your time.
Step 7: Prepare a list of must-make points. Absolutely. This should be a bit higher up the list, no? And wouldn’t these points be an order of magnitude or two more useful if they were arranged as argument blocks–with case/JA cites and snippets of key language from them? And wouldn’t it be even more helpful if we devoted one page to the affirmative points that you need to make and another to your counters to the Bad Guy’s best points, so you could see both at once in a helpful graphical layout?
Or, you know, you could make a list.
Step 8: Anticipate the hardest questions. Or anticipate all of the questions that you’re likely to face, and work on some razor-sharp answers to them that work back to one or more of your main themes. This, again, is part of the utility of a moot court.
Step 9: Get to know your clerk. No. Wrong. This is not a step in oral argument prep.
Worse, consider some of the pressing questions that Solowey suggests that you pose to the clerk: “How long will each side have for argument? If you are the appellant, can you reserve rebuttal time?” If you don’t know the answers to these and similar questions, you really ought to consider associating competent local appellate counsel.
This list is just depressing. Here are some better ideas about preparing for oral argument. Perhaps one day I will summon the energy to present them in listicle form.