The Accidental Advocate: Tips for the Reluctant Rhetorician
I was not on the debate team in high school, I majored in print journalism in college, and I dreaded the mandatory moot court in law school. After my clerkship hooked me on appeals, I came to work at my current firm presuming I would spend my entire career as an "office lawyer," writing briefs in appeals that my mentor Malcolm Edwards would argue before the court. Yet now I relish my time in open court, arguing upwards of twenty appeals a year. The highlight of my career to date was appearing before the U.S. Supreme Court. And the reviews (unsolicited and uncompensated, I swear!) were good too:
"Catherine Smith . . . is one of the finest oral advocates I have ever seen."
Dahlia Lithwick, Supreme Court Dispatches
January 12, 2000 Slate Magazine
"The lawyer for the parents, Catherine Smith, gave an exceptional argument. She was relaxed, self-assured, and very effective. Smith handled the intense give-and-take with the justices as casually as though she were sitting down to a boisterous family dinner."
ABA Litigation Magazine, Volume 27, No. 4 (Summer 2001)
Have A Conversation, Not An Argument
What turned me from a sweaty-palmed novice with a lump in my throat to an eager advocate with a gleam in my eye? I think the change occurred when I realized that oral argument is a misnomer. An effective appearance before an appellate court should not be considered combat with opposing counsel. Instead, it is your only, golden opportunity for thoughtful dialogue with the judges who hold your client's fate in their minds - and hearts. Once I began looking at oral advocacy as a structured conversation with the court, many of the concerns I had about straying from the "script" of a prepared presentation disappeared, replaced by an eagerness to tackle the hard issues that should be the hallmark of every good appeal.......because if the law is settled and the facts are clear, what are we doing in the Court of Appeals?
This was an easier lesson to learn because I have been lucky to practice in front of the appellate judges of Washington state, where a lively interest in the law often makes for a "hot bench" and plenty of questions. But even when the judges remain silent - and you are only talking to yourself, so to speak - approaching preparation for argument as the groundwork for that hoped-for discourse with the decision-makers will lead to a less nerve-wracking and more effective presentation in the appellate court. How to best prepare for that dialogue?
Review the Briefs For Unanswered Questions
Preparation begins with the briefing, which should bring into high relief the legal principles to be applied to the facts set out in these written materials. The briefs are the source of any questions the judges will have to begin our dialogue. So I begin my preparation by reading the briefs "cold," without any review of the record or the law. I usually begin by reading the respondent's brief, and only thereafter read the appellant's opening and reply brief. I do this both because I've been told most judges start with the respondent's brief and because, even if they don't, the institutional impediments to reversal make the respondent's position the most likely one for the court naturally to adopt.
Although I begin my review with the respondent's brief whether I am representing the appellant or the respondent, I am looking for different things depending on whom I represent. As advocate for the appellant, I am noting the facts and arguments in the respondent's brief that make me "twinge" - that, given the fact I haven't yet reviewed my own briefing, I'm not sure have been or can be answered. As the respondent's attorney, I am looking for logical gaps in the facts or analysis presented in my brief that the court may want me to fill in during our conversation.
Read The Law With A Historical Perspective
In this initial review, I make notes on those matters that would concern me if I was deciding the case. I'll also note cases that I would want to read based on the briefing. I have photocopies of all the cases in the brief, so I can pull out and read those that interest me after this preliminary review of the briefs. If there are a series of cases developing an area of the law, I read them in chronological order, to get some idea how we got to the point of this appeal.
Usually there are only a handful of cases to be thoroughly reviewed. Often many cases that have little relevance to the substantive issues are cited for preservation of error, standard of review, or discretionary issues. I only skim most of those cases, looking for fact situations or results that fit into the general principles I will be arguing to the court.
Develop A Theme . . .
After this preliminary case review, I reread my own briefing, to develop the themes I want to discuss with the court in argument. When I represent appellants, I am always trying to present a case that could decide a question of law - I try to frame the precedent I would like the court to establish in the case. That is my theme for argument. As a respondent, my focus is often on the reasonableness of the lower court's ruling and the institutional justifications for judicial economy and efficiency by affirmance. That too is a "theme" - although it is often most effectively developed in a review of the facts. In either case, at this point I outline the reasons why the trial court was wrong - or right - in the legal areas presented by the briefing. Those general points - there are usually no more than three or four, each with no more than three or four reasoned sub-parts - with annotations to the statutes and cases and where they can be found (in the reported volumes or the briefing) - is the outline for my argument.
. . . But Be Flexible
I have only a general idea of the order in which I will address these points when I stand up at the podium. But as in any good conversation, you never know where the discussion may lead you. That is particularly true in oral argument, where the whole point of the discourse is to inform the decision-makers. The judges' agenda, therefore, must be your own. I purposefully don't cement the building blocks of my argument in any particular order, and try always to be open to all the different ways in which my points can fit into the structure of the conversation as it develops in court. This is particularly true when I am representing a respondent. The appellant's opening argument and questions from the judges often cause me to rearrange completely my tentative order of argument to more directly address the issues that appear to interest the panel.
Know The Facts
All cases depend, of course, on their facts. So after I have my legal themes developed, I separately write out a chronological outline of the relevant events, with citations to the record for critical points. This is also when I deal with any preservation problems, noting whether and how an argument was preserved or waived below. If you have done a good job on your briefing, this chronology can be gleaned from the statements of fact - with special care to cite to the record for those facts that gave you pause in the initial review of the briefing. Because the true significance of a fact or, more likely, the procedural posture in the case, may not be fully apparent until this final review of the statements of fact in the briefs, I also skim the clerk's papers, which I have arranged in chronological order, the exhibits, and the summary of the transcript that was prepared when the case was briefed.
Believe In Your Case
By this time, I have read at least twice the relevant law, a summary of the record, and the briefs. I have a written outline of argument points and a chronology. I could give the argument now. But if I have more time I will now focus almost exclusively on my own briefing, steeping myself in the facts and my themes. If I've honestly listened to my "twinges," I've already dealt to the extent I can with the concerns raised by my opponent's briefing. Because this is not a competition, I don't want to concern myself too much with their argument now. Instead, I am preparing myself for my dialogue with the court.
Put Your Heart In It
What about moot courts? I think they are overrated. If, like me, the prospect of criticism of your performance is part of the dread of oral advocacy, talking about the case with colleagues and keeping up an internal dialogue about the case are much more effective than practicing a set argument before a mock panel of hypercritical lawyers whose only role is to pick apart your performance. And, as in any conversation, the emotional content of your oral argument is what most distinguishes this form of communication from writing. If you have exhausted all your emotion about the case in moot courts, you may have little left to give the real judges in your dialogue with them. Moral fervor does not keep well.
The final preparation for oral argument is in the courtroom. Listen closely to the exchanges in cases that are heard before yours. Listen to the judges as they question you and your opponent, with whom they are also having a dialogue. The law is a seamless web, and each case informs every other one. And always remember that this is not an argument, but a quest for justice on the part of us all.