Wednesday, June 6, 2018
Over the last few weeks, I've worked with a young lawyer as he prepared for his first appellate oral argument in an important federal case. And I experienced what is, at this point in my career as a teacher of advocacy skills, the familiar thrill of watching a good lawyer quickly get better. I hope the oral arguments in the case lead to better results than we'd see in whatever outcome and reasoning the panel would have reached based on the briefing alone. But I know this: preparing for and presenting the argument has made my colleague better.
In the last two posts on this blog, Tessa and Dan discuss recent pieces in the New York Law Journal and the National Law Journal on the steep quantitative decline of oral argument in the federal circuit courts. This decline is, perhaps, inevitable in an era of expanding dockets and technological advances that make briefs relatively cheap to generate and consume (I said relatively; don't @ me). But my reflex is to bemoan the lack of betterment that must accompany this decline. I'm not talking so much about the betterment of case outcomes or of society more generally. The hit to that species of betterment is, no doubt, real and worthy of discussion. And it has been discussed, well and often, on this blog and elsewhere. See, for example, pieces by Jennifer and Tessa discussing a report from the American Academy of Appellate Lawyers on why the decline matters; see also this piece by David Cleveland and Steven Wisotsky. But the benefits of oral argument in bettering outcomes and society are marginal and difficult to quantify; perhaps they're mostly not worth the cost. I don't know.
I'm concerned about the betterment of lawyers. It's not just that, as oral argument rates decline, fewer emerging lawyers will develop experience in the art of oral advocacy. After all, if the need for oral argument artisans declines, then bemoaning the loss of opportunities to practice the craft would be like getting upset over the scantiness of job listings for haberdashers.
It's that doing oral argument makes one a better lawyer. Preparing for oral argument makes one a better lawyer. Deeply. Quickly.
If one prepares properly, appellate oral argument is a nearly perfect pedagogical tool. One basically can't prepare for and present an oral argument without working through virtually all of the techniques recommended by learning scientists (summarized nicely in the book Make It Stick: The Science of Successful Learning). Oral argument is an intricate, dynamic exercise in retrieval practice; as such, it leverages the testing effect. It demands elaboration: advocates must explain complex subjects clearly and vividly, show connections, relate the abstract to the concrete, and so on. It requires one to construct and use a network of mental models. As advocates move though disparate bits of the argument, they interleave material. Particularly because advocates naturally spend much of their time at the podium getting tested, through interrogation, about the most challenging aspects of their theory of the case, oral argument produces desirable difficulty. Judges' reactions provide real-time feedback. Post-moot periods promote reflection, a key component of sophisticated learning and skill development. The dynamic of oral argument lends itself to spaced practice. And anyone who has had to perform in oral argument learns quickly that our usual, misguided ways of "learning" material -- reading and cramming, with little retrieval or performative practice -- don't help much. Prepared oral advocates learn, deeply, then teach, and learn more deeply for having taught. The expertise sticks.
Let's say I'm right that doing and preparing for oral argument is an especially powerful way for lawyers to develop expertise and skill. And let's say that oral argument skeptics and realists are correct that oral arguments only rarely affect outcomes in cases and most often aren't worth the cost. Maybe we can agree on this: let's push more oral arguments down to junior attorneys. That'll drop the costs. Maximize the benefit. Make a lot of forward-thinking courts happy.