Jay O’Keeffe practices with Johnson, Rosen & O’Keeffe LLC. in Roanoke, Virginia, where he splits his time between appellate and business litigation. read more
By Jay O'Keeffe on Posted in Oral ArgumentLongtime readers know that I’m a huge fan of oral argument. Giving counsel a chance to address the Court’s questions before the decision conference strikes me as vital. But for obvious reasons, recent events have complicated courts’ efforts to hold argument. It’s been fun to follow the workarounds that they’ve applied. A few basic strategies… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentRaffi Melkonian, an appellate lawyer from Texas and the dean of #appellatetwitter, has been working on what he considers the hardest problem at oral argument: the judge who has misunderstood something and is angry about it. I'm listening to a series of oral arguments for "reasons," and I've decided the hardest OA problem is the… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentHave 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.… Continue Reading
By Jay O'Keeffe on Posted in Appellate Practice,Oral Argument,UncategorizedJust about everyone who’s argued before the Supreme Court of Virginia has tortured him- or her-self with the same mind game at one point or another. It usually starts with a chain of thought that goes something like this: Wow, that was an intense argument. Justice X seemed really hostile. He was asking a ton of… Continue Reading
By Jay O'Keeffe on Posted in Oral Argument,UncategorizedEver want to see the appellate equivalent of torture porn? Here’s a video that’s making the rounds of an oral argument from the Ninth Circuit in a case called Baca v. Adams: Skip ahead to 16:03, and be sure to watch all the way to the end. Otherwise, you’ll miss the part where Judge Kozinski stops… Continue Reading
By Jay O'Keeffe on Posted in Oral Argument There’s a lot to like about practicing in the Fourth Circuit–the case managers are excellent, the local rules and IOPs are intuitive, and the staff is remarkably responsive. It’s probably the most user friendly court I’ve ever seen . . . except in one respect: The Fourth Circuit doesn’t announce panel assignments until… Continue Reading
By Jay O'Keeffe on Posted in Oral Argument,UncategorizedHere’s a guest post from my partner and longtime friend of De Novo, Monica Monday, in which she owns up to her personal demons (such as they are): I admit it. I am an appellate argument junkie. This has been a long-standing problem, but when the Supreme Court of Virginia began releasing audio recordings of its oral… Continue Reading
By Jay O'Keeffe on Posted in Appellate Practice,Briefs,Oral ArgumentI was flipping through the latest volume of The Scribes Journal of Legal Writing when I came across an interview that Bryan Garner did with (then-Chief) Judge Frank Easterbrook of the Seventh Circuit back in 2007. Bryan A. Garner, Interview with Judge Frank H. Easterbrook, 13 Scribes J. Legal Writing 1 (2013). Inveterate Garnerphile that I… Continue Reading
By Jay O'Keeffe on Posted in Briefs,Oral ArgumentThe VTLA just wrapped up another terrific annual meeting at the Homestead. I learned many things during the CLE sessions, including that I would like to be Mike Imprevento when I grow up. But one of the absolute highlights of the meeting was a session called “Supreme Court Thoughts and Muses,” in which Jeffrey Breit moderated a panel made… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentI 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… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentI’ve been helping a few friends prep for their first oral arguments recently. It’s been a mutually beneficial exercise, because (1) it has forced me to think about what I do to prepare and why I do it, and (2) it reassured them that, if I can do this stuff, then anyone can. Looking back on those conversations, though, I realized that I’d forgotten to… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentDepressing fact of the day: The Fourth Circuit hears oral argument in about 9% of the roughly 5,000 cases it considers each year. For context, here’s the 2012 acceptance rate of each Ivy League school, according to Google: Harvard: 5.9% Yale: 6.8% Columbia: 7.4% Princeton: 8.5% Brown: 9% Dartmouth: 9.8% Penn: 12.3% Cornell: 16.2% So basically, the chance of the Fourth Circuit granting… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentI had the pleasure of watching a day of oral argument at the Supreme Court of Virginia recently. Because I was second-chairing an argument that my partner, Monica Monday, delivered, I was actually able to relax and pay attention to the other arguments. Here are a few lessons that I gleaned: Don’t Milk the Billy Goat. The theme of one… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentRecently, I’ve been experimenting with the way I prepare for oral argument. After reading David Frederick’s outstanding book, Supreme Court and Appellate Advocacy, I’ve followed his advice and taken to making argument blocks. What are argument blocks? They’re really just a table summarizing my 3-5 key affirmative points and my responses to opposing counsel’s 3-5… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentOne of the perennial challenges of being an appellate lawyer is dealing with nerves at oral argument. The only thing worse than nerves at oral argument is the stress of preparing for oral argument. As part of the process, you try to anticipate and plan a response to every killer question that might be headed your way until… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentThe most critical part of getting ready for oral argument is anticipating the questions that you will get from the bench and preparing to answer them effectively. To do that, as soon as I start working on an appeal I create a list of “tough questions,” which I continue to update through the date of oral argument.… Continue Reading
By Jay O'Keeffe on Posted in Appellate Practice,Oral ArgumentWe have a real treat for you today. A major highlight of last week’s AJEI Summit was a surprise appearance by Chief Justice Roberts, who dropped in on our Thursday-night reception. In person, the Chief is ever so dreamy, though perhaps not quite as tall as you might have expected. (Shortness is endemic in appellate circles; most people… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentA few months back, I took part in a VTLA telephone seminar on oral argument. One of the questions that came up was: What do you do when you are asked to make a concession at oral argument? (Paraphrasing here; this was a long time ago.) I shocked my betters on the call, and even caught a… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentChief Justice Roberts has a well-deserved reputation as a stellar oral advocate. In Bryan Garner’s words, the oral arguments he gave during his days at Hogan were “generally breathakingly good.” Or as Miguel Estrada once put it, the “G” in John G. Roberts stands for “God.” In 2006 and 2007, Bryan Garner interviewed seven members of… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentControlling anxiety is one of the hardest parts of oral argument. Everybody gets nervous. You never really outgrow it. I’ve seen even very experienced, very good lawyers–lawyers much better than I’ll ever be–undone by their own nervous energy at oral argument, spitting legal propositions in the panel’s general direction at twice the speed of human comprehension. In the past, we’ve… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentI chose to celebrate the unseasonably warm weather last week by participating in the VTLA’s February Freeze Telephone Seminar. The other panelists were Steve Emmert and Kevin Martingayle. Roger Creager, Mic McConnell, and Mark Lindensmith shared moderating duties. If you click on any of those links, the first thing you’ll notice is that everyone on that… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentI 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.… Continue Reading
By Jay O'Keeffe on Posted in Oral ArgumentThe Supreme Court of Virginia heard writ arguments this week, with 2 panels sitting outside of Richmond. One was in Roanoke County, where I was lucky enough to have a few arguments. That gave some of my friends and colleagues a chance to see what I do for a living. That was fun. More fun: my panel comprised Justices Koontz,… Continue Reading
By Jay O'Keeffe on Posted in Appellate Practice,Oral ArgumentIt’s time for another trip to the electric mailbag to see what’s on your collective mindgrapes. At the behest of some of my colleagues and our insurance carrier, I’d like to reiterate that this post is not legal advice. Nobody reading this blog should expect to enjoy any kind of attorney-client relationship with me whatsoever. Frankly, if… Continue Reading
