Wednesday, August 18, 2021
The things that helped me most as a law student and young attorney were learning how attorneys that I admired did things--what concrete things did they do to get ready for trial, to understand a record, to prepare for oral argument, etc. I've kept mental (and sometimes written) lists of those things over the years and have tried to pass them on to law students and young attorneys. Here's a checklist I've put together for oral arguments:
- Prepare an outline, go over it a few times the night before.
Just like law school—get your case down to its essence and get out all of the points you want to hit. Odds are you won’t get to everything, and almost certainly not in the order you want to get to it, but it isn’t about you, it’s about the court and its concerns.
Some necessary elements:
a. Decide the points you want/need to make, and make them prominent—put them first, in bold, highlighted, etc.
b. Include record cites and case names after assertions you’re likely to get questions/pushback on.
c. Leave space to write in questions/answers that come up during opposing counsel’s argument.
- Re-read the relevant parts of the record—trial transcript, pleadings, jury instructions, etc. What you read will depend on the case. If it’s a small record, re-read everything; if it’s a large one, then just read pertinent parts. It helps to have all the stuff in the case fresh in your mind when you go to court.
- Re-read the briefs. You’ll be surprised how much you forget about even your own arguments. If you find good cites here, include them in your outline.
- Re-read important cases, statutes, and rules. Memorize if central to appeal issues.
- Spend at least one full day coming up with questions. This was some of the most helpful advice I got when I started out. Don’t neglect very basic questions like what happens to the case if you win/lose.
- Find a quiet place to just think things through and strategize about argument. In normal times, I would come up with really good stuff on the train ride into work, mostly staring out the window and thinking.
- Explain the case to a non-lawyer, see how well you have it boiled down.
- Say your opening out loud—in the car, in the shower, in your office, wherever—just practice somewhere.
- Practice giving your argument while being interrupted with questions (this was John G. Roberts’s approach when he was an appellate attorney).
- Watch other oral arguments—find what style works for you.
- Keep issues on the backburner in your mind—you’ll be surprised what answers come at random times. Write them down when they come
- Have a good argument decompression ritual—get your favorite sandwich, take a walk, do something to get the adrenaline out.
- Come back and listen online to your argument about a week later. Listen for what worked, what did not. Then work on verbal tics (“um,” “so,” “you know,” etc.), pacing, responses, interruptions, etc., and incorporate these into your prep for next time.