Appellate Advocacy Blog

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

Wednesday, November 17, 2021

Shaking those nerves

My appellate advocacy students have been doing their oral arguments in class. Many of them have not done moot court, so this is their first experience standing at the lectern. Almost all of them start out with some nerves and then settle down after getting a few questions. When it's over, they ask how to not be so nervous. I think that this is a common enough question from students and young lawyers to merit a post, and I welcome other ideas from practitioners out there.

  1. Practice, practice, practice. Mooting a case before the real argument is the best way to prepare. Grab a couple of experienced attorneys in your office (and one outside your office if you can), have them read the briefs, and then get their thoughts. For young attorneys, I think it helps to do it both informally (sitting around a table and discussing what the court's concerns are likely to be, what your theme should be, etc.) and formally (having the attorneys role play as judges and actually ask the questions). If you do this a few times, you're not likely to get a question that hasn't come up before, meaning you will have a ready answer for each one. This breeds confidence and naturally drives down the nerves.
  2. Observation. One of my colleagues started out doing appeals in the Illinois Attorney General's Office, and he said that his boss there would not let anyone argue in the Illinois Supreme Court without having done the 3 1/2 hour drive from Chicago to Springfield to watch arguments in-person. I think this was a sound practice. Before you argue, go to the court and watch someone else do it. Many courts are still doing remote arguments and posting them online, so it's pretty easy these days to look up the recordings and observe. If your court is in person, then go there and sit in the gallery. When I did this as a law student, I learned both from watching great advocates and not-so-great ones. The great ones helped me shape my style for the better; the not-so-great ones showed me that while I might not be perfect, I could at least do as well or better than they did. An odd sort of confidence, but it does help combat nervousness.
  3.  Visualization. Picture yourself in the court, giving the argument as you practice. The more you can picture the place where you'll be and the faces of those you'll be talking with, the less of a shock it will be when you are actually standing there.
  4. Medical help. In extreme cases, I've seen attorneys--after consulting with their doctors--take beta-blockers to combat the adrenaline a bit.

Any other suggestions out there?

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Here's a tip from judge. Remember that the court isn't there to embarrass you. The court is there to get help deciding the case. You're there to help them. Yes, the judges will poke and prod, but with limited exceptions they're poking and prodding your argument to see how far it goes, to see if it has holes. They aren't poking and prodding you. Once you can keep in mind that it's not personal, that it's not about you, you can relax and have the kind of conversation the court is after.

Posted by: Ben Goldgar | Nov 17, 2021 8:32:52 AM

Good advice, judge--thanks for sharing! I always use the example of the "Help me help you" scene from Jerry Maguire--Tom Cruise's and Cuba Gooding Jr.'s characters are having an intense conversation, after which Cuba Gooding Jr. says, "See, that's the difference between us--you think we're fightin', and I think we're finally talkin'!" If you can handle intense back-and-forth without taking it personally, then you're actually talking with the panel, not just at them.

Posted by: John Nielsen | Nov 17, 2021 9:21:49 AM

Judge Goldgar, I disagree. When the panel is split, a judge will often try to make you a foil with hypothetical questions designed to highlight a perceived flaw in your argument. I was bailed out of a line of increasingly pointed, yet obtuse, hypotheticals by another judge on a panel once. As predicted, the vote was 2-1 in my client's favor. The Chief Inquisitor was the dissenting vote.

Posted by: Brad Pearce | Nov 18, 2021 6:05:15 AM

Make the practice round much tougher than the actual argument. Ask your practice panel to include a few "tough" questions such as unfair fact patterns or forcing you to correct a fact statement that is inconsistent with the record. That will make the actual argument much easier.

Posted by: Evan Slavitt | Nov 18, 2021 6:36:49 AM

Brad, I've been in those arguments too, but it seems to me that even when facing a judge/justice who is making it personal, thinking of it that way just makes it worse. Time was when my office had a pretty bad relationship with one of our appellate courts, in part because a couple of the court members seemed to have it out for some of our attorneys. Hard feelings on both sides. When I started, I understood the source(s) of the hard feelings, but figured that dwelling on that and taking offense (even if offense were intended) really ups the temperature in the room and makes argument less productive. I approached each argument and each question as if it came from a place of really wanting to understand the issues, and it made a big difference. Still does.

Posted by: John Nielsen | Nov 18, 2021 8:48:41 AM

Even, I completely agree--whenever I moot, I try to be as hostile to the argument as I can for just that reason.

Posted by: John Nielsen | Nov 18, 2021 8:49:18 AM

Don't get me wrong. There are some judges for whom it is indeed personal. For those judges, oral argument is an opportunity to show how much smarter they are than the lawyers. You can't do anything about that. But I'd maintain that those judges are relatively rare. Most judges have secure egos. They just want to get the case decided and move on to the next one. They look on the argument as an opportunity to get help deciding the case. I know I want as much help as possible.

As for the arguments when one judge is talking to another through you, you have to be savvy enough to sense that and recognize that any hostility is really aimed at the other judge, not at you.

Posted by: Ben Goldgar | Nov 18, 2021 1:04:00 PM

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