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.Girl and little boy playing chess isolated over white background

We’ve talked about some of these ideas, like argument blocks and various outlines, in the past.

One of the final

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

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 oral argument in any given case is about as good as the chance of a mid-tier Ivy granting admission to any given applicant. Only the very best, cream-of-the-crop cases evidently merit that consideration.

But what does that mean? What metric does the court employ to decide which cases warrant argument?

Deena Jo Schneider has a terrific article in the current Appellate Issues that sheds some light on these questions.


Continue Reading Behind the Scenes at the Fourth Circuit: How the Court Decides Whether to Award 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 best points. They summarize, in free-verse bullet points, everything important that I have to say, with cites to the joint appendix and pages of case law.

Here is a sample block of affirmative points:

FMVSS should not be admitted

·         Minimum performance in front impact collisions. This is rear impact.

·         Physics different. JA 701-02.

·         Compliance not relevant—Uxa, Malcolm

·         Restatement 4(b): product’s compliance with reg relevant to whether product defective with regard to risks sought to be reduced by reg

·         Close case. JA 1837.

·         Relevance outweighed by danger of unfair prejudice

·         D: Government certified product as safe. ECF 311 @71-72

·         MIL: JA 169

·         NHTSA certified copy of NHTSA test of compliance. JA 1294-95

·         Mentioned NHTSA 15x

FMVSS Jury Instruction

·         Compliance “does not exempt a person from liability at common law.” 49 U.S.C. 30103(e)

·         “compliance with SS is not to be a defense or otherwise affect the rights ot the parties under common law….” H.R. No. 1776 at 24 (1966)

·         Preserves state sovereignty

·         DX39: FMVSS 213 protects against unreasonable risk of death or injury. JA 1120

·         Instruction: can consider, does not require you find one way or another. JA 1660

·         Pl. 27: compliance not a defense. JA 1248

·         Pl. 28: Compliance not evidence that gov’t certified as safe. JA 1249

·         NHTSA found HBB “reasonably safe and not unreasonably dangerous.” ECF 311 at 71-72

Instruction 16 (JA 1659)

·         Based on cases where sophisticated consumer elects not to have optional safety feature. Austin, Butler.

·         No such choice here

·         Mom no role in designing product

·         Bought retail at big-box store. JA 644

·         Did not see much selection. JA 645.

·         No seats with larger wings. JA 649.

·         Not VMJI

·         Neither SCV nor 4th Cir. has ever approved in this context

Instruction 16 (JA 1659)

·         In retail context, always safer product

·         Q: was HBB unreasonably dangerous?

·         Distracts jury

·         Inverts legal principle, makes consumer justify purchase of anything but safest possible product

·         As written, assumes choice was reasonable—central issue in case


Continue Reading Good Ideas That I Stole From Smart People: Argument Blocks

One 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 your brain gets caught in an endless feedback loop and you wake up at 3 in the morning thinking of answers to questions about the standard of review that will never be asked–questions that in any kind of sane world, should never be asked.

Books and CLEs offer all kinds of advice on this point; without getting into specifics, let’s just say that it’s of widely varying quality. Worse, a lot of the advice is repetitive. It’s rare to find stress-management tips that are original or particularly effective.

But local favorite Justice Kagan has come through once again, describing a new technique in the interview she granted Bryan Garner for the ABA Journal (emphasis added):

G: Was your very first oral argument in the U.S. Supreme Court?

K: My very first appellate argument was in the U.S. Supreme Court.

G: Wow! That’s incredible!

K: It was even worse than that really: it was in the U.S. Supreme Court and it was the Citizens United case.

G: That was your first oral argument?

K: It was my first oral argument. It was an important argument. For those who don’t know, it was a case that had been argued the prior term. The Court had decided to re-argue it and had set a couple of questions for re-argument on whether the Court should reverse its precedents in a couple of important cases. It was pretty clear to people that the Court was ready to do something significant—to reverse those cases. So it was nerve racking to do an argument of that importance for my first one. But every time I got too nervous about it, I would say it’s okay because we know which way this is going to come out. You’re going to lose. They basically announced that by re-arguing the case in this way. But that said, it was a nervous-making kind of argument.

Somewhere, Herm Edwards is rolling in his grave . . .


Continue Reading Dealing with Nerves at (and Before) Oral Argument: Some Advice from Justice Kagan

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