Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Friday, March 14, 2014

A Funny Thing Happens While Preparing For Oral Argument

Uncertainty.  Second-guessing.  This week I have (once again) watched it unfold.  While this situation involves a team preparing for a moot court competition next week, the scenario is certainly apropos to anyone in this preparation situation.

Best practices dictate that it is important to "vet" your argument in front of valued sources.  By letting them hear your argument, it is surmised that you will get good feedback on what to include and remove from it - thus coming away with a pristine presentation worthy of Supreme Court Justice admiration.  But sometimes I cannot help but wonder if this process does just as much harm as it does good.  

Let's take my moot court team for example.

The team has just completed its 15th oral argument practice session.  The first 8 or 9 sessions involved just the team working with me as coach.  Together, we analyzed the issues and talked ad nauseam about appropriate responses to anticipated complex questions.  This process seemed to have formulated what we thought was a solid argument with few, if any, holes.  But then we invited in guest judges (a mixture of law professors, practitioners, and law students who have taken course(s) in the subject matter) to observe the practices, ask questions, and offer feedback.  

Let the uncertainty begin.

I was told once that opinions are like a$$holes, everyone has one.  This is true.  It is especially true in the legal profession where we are paid to have, and share, our opinions.  What happened was inevitable.  The first group of judges didn't like the introductory remarks and thought that the argument on behalf of the plaintiffs was too over the top.  It was too much to paint the corporation as a greedy overlord bent on destruction of the weak.  Ok, this made some sense, so the advocates tweaked the argument.

In came the next set of judges.  "Where is the passion?" They wanted to know.  Their opinion was that the corporation's motive was suspect and the plaintiff needs to exploit this issue before the Court.  "You mean paint them as the evil greedy corporation determined to screw the masses?"  "Yes."

Now it is time to re-work the argument again.  Or is it?

Last night, a few more practices in and only 5 days away from travelling to the competition, yet another guest judge offered suggests to "tweak" the argument.  Of course, these suggestions ran counter to what prior judges mentioned.  The problem at this point becomes whether it is wise to once again re-work the argument so close to "game time."  The goal right now should be perfecting the current road-map, not mapping out a new path.  

What are you supposed to do with advice?

It is time for me to share with the team another bit of wisdom shared with me long ago.  If you are walking down the street and someone tells you that you have a tail, ignore the person.  If a second person also says you have a tail, you should start to wonder.  If a third person tells you that you have a tell, you should turn around and look because you probably do have a tail!  

The moral to that story is to take advice with a grain of salt until it merits serious consideration.  I do believe in getting feedback on oral argument before going "live."  However, if one person disagrees with the chosen path, it might be best to chalk it up as a difference of opinion not warranting a change in the argument.  But if more than one person doesn't like the approach, the advocate should be much more inclined to change it.  After all, two or three brains are smarter than one, and the advocate should not let ego get in the way of excellent advocacy.  

I hope the students preparing for oral argument hear and receive this message loud and clear.

http://lawprofessors.typepad.com/appellate_advocacy/2014/03/a-funny-thing-happens-while-preparing-for-oral-argument.html

Appellate Advocacy, Appellate Practice, Law School, Moot Court, Oral Argument | Permalink

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