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: 

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:

  1. A 1-2 page chronology of key facts. Curmudgeon does a chronology of key events in the case, with dates. He can use this as a study guide, and also to fact-check the other side’s argument from counsel table.
  2. An outline of key cases, with summaries of each. These are just the key cases–the ones the court might actually want to talk about–not all of the cases. There will rarely be more than 5-10 key authorities in a case, and they should be apparent from the briefs. Curmudgeon tries to limit his description of each to 6-8 words.
  3. A list of hard questions. Curmudgeon works up a list of the hardest questions about his case, irrespective of whether he can answer them. Then he works on the answers. It can be a big time investment, but it pays off when one of the questions comes up in argument, and he can answer–citing the JA chapter and verse, and even throwing in the odd quotation.

“They all think I’m Einstein, when all I am is Curmudgeon.”

  1. A 1-page outline of his argument. With very few words.

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

The VLW Blog reports that Chief Justice Hassell was hospitalized recently with an infection and will not participate in the Supreme Court of Virginia’s oral argument session next week. The story is here. One of the Court’s senior justices will likely sit in for him during his absence.

We wish the Chief a speedy