Appellate Advocacy Blog

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

Tuesday, January 21, 2020

Preparation vs. Practice

“How can I get better at oral argument?” It’s a question on the mind of many nervous moot court members as the spring competition season heats up. In the past, I’ve given a simple answer; work harder than you thought you could, until the issues are so pellucid in your mind that you can discuss them at any time with any audience, regardless of their expertise.  But when I recently attended a moot court strategy session with guest speeches from several talented, experienced appellate advocates, I was forced to reconsider that simple “hard work” mantra. The advocates offered some compelling advice for the nervous moot court member that focuses on the right kind of hard work as the big day approaches.

Admittedly, a big component of oral argument preparation involves brute force. One reason I love oral advocacy is that hard work really pays off. Successful oral advocacy—meaning a clear presentation that supports the written brief, emphasizes the primary strengths of your client’s position, and anticipates all avenues of questioning from the bench—is directly correlated the work the advocate dedicates to the task in the weeks prior to the argument.

But to truly achieve mastery, brute force is not enough. As the experienced advocates recently suggested, gearing up for oral argument really involves two related but distinct components: preparation and practice.

Preparation entails the careful study of the law that deepens the advocate’s understanding both of where the law has been and why jurists and scholars crafted it that way. Preparation takes a careful, humble look at the status of the law as it was prior to your case. It goes beyond merely quoting magic words from key decisions. The advocate must internalize the policy positions that support those words until they can explain them to any intelligent layman. Preparation also requires additional research beyond what the advocate conducted while composing their brief. The advocate must now consider both sides of the issue, reviewing their opponent’s approach to the problem and acknowledging where and how its has exposed genuine weaknesses in their own case. Advocates must recognize that preparation is vital to oral argument success. They cannot merely stop researching and thinking deeply about the issues because the brief is now finalized.

Practice, on the other hand, means standing uncomfortable before as many people as possible, even those with great depth of knowledge of the legal issues, and attempting to defend your position under intense scrutiny. Practice must be undertaken early and often; it does little good to wait to genuinely test your oral presentation until you feel “ready,” because you’ll never learn what strengths and weaknesses others see in your position by staying in your own silo. Practice requires the advocate to stay in character, and to sometimes take the tough questions for which they do not yet have answers on the chin. Feeling that discomfort will motivate the advocate to solve the pressing problems in their position so they can avoid such embarrassment on argument day.

Though preparation and practice mean different things, perhaps the most important thing for oral advocates to recognize is that they are discursively related. Advocates cannot practice successfully without internalizing the issues and the current doctrine well enough to have an intelligent conversation about the case with any dubious judge. At the same time, one cannot prepare successfully without testing their ideas in the crucible of practices that closely simulate the pressures of real argument, thus exposing the soft spots in their view that require more research and deeper thought.

The order matters less than the balance throughout the process. Preparation and practice go hand in hand. Both are vital to successful oral advocacy. Devoting some of one’s hard work to each is the most likely path to successful oral advocacy.

https://lawprofessors.typepad.com/appellate_advocacy/2020/01/preparation-vs-practice.html

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