De Novo: A Virginia Appellate Law Blog

De Novo: A Virginia Appellate Law Blog

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

Category Archives: Oral Argument

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Oral Argument During the Pandemic

Posted in Oral Argument
Longtime 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

The Hardest Problem at Oral Argument

Posted in Oral Argument
Raffi 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

VLW Drops the Ball on 10 Steps for Oral Argument Prep

Posted in Oral Argument
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.… Continue Reading

Seven Appellate Tips from a Seventh Circuit Judge

Posted in Appellate Practice, Briefs, Oral Argument
I 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

Oral Argument Prep–The Games We Play

Posted in Oral Argument
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… Continue Reading

What to Bring to Oral Argument

Posted in Oral Argument
I’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

Behind the Scenes at the Fourth Circuit: How the Court Decides Whether to Award Oral Argument

Posted in Oral Argument
Depressing 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

Good Ideas That I Stole From Smart People: Argument Blocks

Posted in Oral Argument
Recently, 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

I Am John Roberts and So Can You, Part III: Video Proof

Posted in Appellate Practice, Oral Argument
We 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

Oral Argument: Concede Nothing

Posted in Oral Argument
A 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

Good Ideas That I Stole From Smart People: Dealing with Stress at Oral Argument

Posted in Oral Argument
Controlling 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

VTLA February Freeze Seminar

Posted in Oral Argument
I 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

In Defense of the Red Square

Posted in Oral Argument
The 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