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
Chief 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
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
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
I 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. Here are ten things I wish that someone had told me before my first oral argument:
1. Answer the damn questions.
The single best use of your time at oral argument is answering the Court’s questions. The Court is deciding your case. What interests the Court is of primary importance to you by definition. Further, nothing seems to irritate a court more than ignoring a question. As Judge Kozinski famously noted, there’s really no substitute for annoying the people who control your fate.
On that note, I wish that someone had told me not to worry about sticking to my outline, couching my answers in terms of my themes, controlling the discussion, and so forth. Seasoned jurists will see through that anyway. Just answer the Court’s questions as directly, honestly, and concisely as possible.
Hopefully, that will be no more complicated than a yes, no, or JA citation. If the answer requires qualification then, as John Davidson likes to say, “Answer first, and then explain.” In other words, “Yes, unless . . .” or “No, except that . . .”
Everything else on my list is subsidiary to this point.Continue Reading 10 Things I Wish I’d Known Before My First 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:
It’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
On Wednesday, the Supreme Court of Virginia heard oral arguments on petitions for appeal, or “writ arguments.” Writ arguments give the appellant a chance to explain, in person, why the Court should grant his or her petition. The appellant has 10 minutes to argue before a panel of 3-4 justices. The appellee does not get
On Friday, the Supreme Court of Virginia handed down 18 published opinions and two orders. As always, Steve Emmert has a witty write-up (along with a new photo on his web page–looking good, Steve). The VLW Blog also discusses some of the highlights. The bulk of January cases are either criminal appeals or habeas proceedings; I haven’t done the math myself, but Emmert breaks it down to 15 criminal appeals/habeas proceedings and 5 civil matters.
As you might have noticed, I wasn’t exactly on top of this breaking news–or much of anything else that happened over the past week, for that matter. Here’s my excuse:
From January 8-14, I attended the the National Trial Advocacy College at the University of Virginia. It’s off-topic, so I won’t bore you with the details, but it was probably the best educational experience of my life. The faculty was spectacular, the exercises were demanding, and the feedback was brutally honest. Further, I got to spend a week with dozens of talented and motivated lawyers working to get better at their job. That was fun. It was also a neat reminder of how lucky we are to do what we do.
But it gets better. I capped that off with an oral argument before the Supreme Court on Friday. For obvious reasons, I can’t discuss the case. But I really treasure the opportunities I get to argue before the Court. Oral argument is the reward for all of the hard work you put into briefing and preparing (although somehow, thinking of it that way doesn’t make me any less nervous). Different people go to law school for different reasons. If you ask me, the coolest thing you can do with a JD is to have a conversation with the Commonwealth’s highest court about what the law is (or should be), and help them get to a fair result that will justly govern future cases. It was a brilliant end to a perfect week.Continue Reading Supreme Court of Virginia Releases January Opinions
And we’re back after a short holiday break. I hope that you all were able to take a little time out of your schedules to enjoy the season.
For Christmas this year, Carrie got me The Curmudgeon’s Guide to Practicing Law by Mark Herrmann. It’s just perfect. If you haven’t read the book, I highly recommend it. Herrmann, of course, was until just recently one of the authors of the Drug and Device Law Blog and a partner at Jones Day. All of that pales in comparison to the sheer brilliance of The Curmudgeon’s Guide.
One of the book’s highlights is its chapter on preparing for oral argument. In just 10 pages, it offers as good a treatment of the topic as I’ve ever read. Many of Herrmann’s thoughts apply just as well to motions argument in trial court as they to oral argument in an appellate court.
So how does Curmudgeon prepare for an argument?
He drafts four outlines:
“They all think I’m Einstein, when all I am is Curmudgeon.”
Armed with these outlines, Curmudgeon rehearses his argument, several times, from his 1-page summary. He typically reserves “moot courts” for his more complicated arguments. When it’s time to deliver his argument, Curmudgeon brings only his 1-page outline with him to the lectern.Continue Reading The Curmudgeon Argues