Appellate advocates know that careful preparation is the key to a successful oral argument. What happens in the courtroom represents only the tip of the proverbial iceberg of what counsel has done in advance of an appeal. With time limits for oral argument and hot benches, it’s a given that questions from the Court will be fast and furious. Yet, since counsel cannot know precisely what the questions will be, they must be prepared for anything.
Before his appointment as Chief Justice of the U.S. Supreme Court, John Roberts was widely considered to be the leading advocate of the Supreme Court Bar, with 39 appearances before the Court. His meticulous approach to preparation was legendary, so anything he has to say on the subject is worth listening to.
In the 2010 edition of the Scribes Journal of Legal Writing, Bryan Garner published interviews with all nine justices of the Court. There is a great deal of valuable information in the interviews. I found the extract below from Chief Justice Roberts on his method of preparing for oral argument to be especially helpful. It deals with the tricky issue of how to transition out of questions from the Court, and back into the flow of oral argument. I have said elsewhere that this may well be the most challenging aspect of oral argument. Chief Justice Roberts’ solution hinges on thorough preparation.
How does an advocate at oral argument learn to turn a judge’s question into a transition to the advocate’s next point? Isn’t that a great challenge?
It is. I have a particular practice approach that is addressed to just that point. I don’t care how complicated your case is; it usually reduces to at most four or five major points: here’s the key precedent, here’s the key language, here’s the key regulation, here are the key consequences. You have four or five points. It’s called A, B, C, D, and E. And when I’m practicing giving the argument, I’ll go through it, and then I’ll just shuffle those cards — A, B, C, D, and E — without knowing what they are. Then I’ll start again and I’ll look down. Okay, my first point is going to be C; and then from point C, I’m going to move to point E; and then from point E to point A. You develop practice on those transitions . . . because that’s how it always works, at any appellate court. You can’t guarantee the first question you’re going to get is going to be on your first point. It may be on your third point. And everyone has seen this, and it’s very awkward for somebody to say after they answer that third point, “And now I’d like to go back to the point I was making.” Well, okay, it’s not very smooth, and you kind of lose a little bit of traction. If you’ve practiced giving that argument [on your] third point and then to the first point and then to whatever, you can make those transitions, and it’s much smoother. And again, one, it conveys a greater degree of confidence on your part in your presentation — that you’re not pausing and saying, “Now I’ll go back to something else.” It prevents the argument from seeming disrupted, and it makes the argument look fluid no matter what questions you get or in what order the points come out.
I must have read hundreds of articles on oral advocacy. I’ve never seen that tip before. I think it’s brilliant.
It’s a great way to practice because everybody will practice, okay, points 1, 2, 3, and 4; 1, 2, 3, and 4 — and you get so set in that mode. And the first thing that happens, of course, is some judge like myself asks you about point 4 when you get up there, and you think . . . The worst thing sometimes people [say is], “Well, I’ll get to that later,” which you never want to say. Or in effect you kind of disaggregate the arguments: Okay, I’m going to answer your question on point 4, and then I’m going to go back to point 1, and we’re going to go through it all again. And you develop a much more comfortable facility with the whole argument if you’ve practiced it: point 4, then point 2, then point 3, and then point 1 — because those may be the order in which you get the questions.