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 . . .