Wednesday, April 20, 2022
The best advice I ever got on oral argument was to set aside a full day to brainstorm questions that the court could ask. At first, it was a bit daunting; that's a lot of time to spend trying to come up with ideas. But I found that nothing helped me better to prepare for argument, and over time, it became--especially in difficult cases--the most enjoyable part of preparing a case.
To an outside observer, I probably look like I'm slacking off on those days--I'll stare out the window, look at the ceiling, pace around the office, etc. But it is in those actively contemplative moments that I am coming to the deepest understanding of the issue(s).
If you're just starting out, it can be hard to figure out where to begin, so here are some general topics to ponder:
- If an issue in your case involves a statute or rule, spend some time just looking at it. "Zoom in" and parse the language--the words, their tenses, their relationships to each other--and "zoom out" to the larger purposes of what the statute/rule is about.
- If your case depends to any significant degree on precedent, do the same with cases--figure out which cases are most significant (this will often be obvious during briefing, but try to come back to things with a fresh take), what their individual reasoning is, and how they relate to each other.
- Try to put yourself in opposing counsel's shoes--if you can see things from her perspective, then you can likely anticipate how she will pitch her arguments (and how to respond to them). I've also gotten many questions from judges trying to figure out what opposing counsel's argument is. If they haven't thought through it and can't explain it, the court may look to you for guidance.
- Develop your inner court--learn what kinds of concerns animate a judge's decisions, and try your best to anticipate and address them.
- Embrace the most difficult questions. Many young lawyers would rather avoid difficult parts of their cases, but a good panel will go after those first. Recognize that you will get difficult questions, and embrace them as a chance to persuade rather than fearing that the question alone will sink your case.
- Use your mental backburner. Every so often I come up with a question so good that I can't figure out the answer right away. Those I place at the back of my mind and find that answers come at unexpected times--while I'm riding on the train, while I'm at the grocery store, at the park with the kids, etc.
- Re-read important parts of the record and think about what happened and why.
- Ask yourself if what you're asking the court to do is a good idea. Seriously--if it is, then why? If it seems like a problem, what's the limiting principle?
- Consider your lines--what can you concede and still win the case, or for institutional players, how can you lose in an acceptable way? Judges love concessions, and if you can give something up without hurting your case, it will endear you to the judges.
- It's been said that the truly educated person understands the implications of his beliefs. So if you're right on this issue, what else must be true? What might it mean for other areas of the law?
These things can also help in coming up with questions for those you are helping prep for argument. But as a seasoned appellate attorney once told me, good mooters come up with good questions, but great mooters come up with good answers. Sometimes there's a tough question that requires collaboration to figure out, but don't make others do all the thinking--try your best to propose a solution and your colleagues will love you for it.