The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

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**Editor's Note: This is part IV of IV in a series leading up to a presentation on oral argument preparation at the UTCLE Conference on State and Federal Appeals.  Follow the links to read the First, Second and Third parts of the series.**

There is a part of me that really hates oral argument. 

There.  I said it. 

It makes me suspicious that being there "in person," and "who you are" still counts on top of  "what you know" when you are trying to persuade a court to rule in favor of your client.  My paper for the UT Conference on State and Federal Appeals puts it this way:

I have a chip on my shoulder against the “oral argument lawyer.” You know the type: an empty suit whose only merits are that he is tall, dark and handsome with a deep and sonorous voice and a full head of luxurious hair. (This vacuous character usually is a “he.”) I call this type of lawyer a “weatherman,” i.e., one who reads the teleprompter and looks good but who has not studied the legal doctrines and is barely literate on the briefing. For all his faults, a weatherman can still win cases by the power of his personality, even when he should not. As someone who is short, balding and analytical-rather-than-handsome, that kills me.

I'll never be a weather man.  I haven't got the looks or the persona.  But that's OK.  I'd rather be a "real" appellate lawyer.

The one thing that most distinguishes a weatherman, who is just another pretty face, from the "real" lawyer is preparation.  Nothing flashy, but there it is.  Indeed it was preparation that changed a stutterer into the voice that saved the Western World--Winston Churchill in 1940 when England stood alone.  Again from the paper:

Never has the spoken word been used to such great effect; but, Churchill had an inauspicious beginning as a public speaker. He lived in the shadow of a father who was noted in his parliamentary career for giving speeches from memory. So, Winston tried it and failed. Early in his political career, in the middle of a speech on a trade union bill, his mind went blank. He sank to his seat, head in his hands and could go no further.

From that point on, Churchill came to every speech armed with every word that he was going to say, including pauses and notations for “cheers,” “hear, hears” or even “prolonged cheering” and “standing ovations.” He estimated that the preparation of a forty-minute speech took between six and eight hours. He started by dictating to a secretary at a typewriter, the first of several drafts. From there he revised, cut and pasted, until he had it just right. Then, the speech was ready to be set down in what the staff called “psalm form,” the line endings demonstrating the rhythm of the spoken word.

I would say to the House

            as I have said to those who have joined this Government:

                        “I have nothing to offer but blood, toil, tears, and sweat.”

At oral argument, your challenge, in a sense, is even more complicated than Churchill's.  You can't prepare for an uninterrupted speech.  You have to prepare for a score of related speeches to give on the fly while you are subject to cross examination by an audience that may be hostile to your position. 

You have to prepare for that.

Unless you'd rather be a weatherman.

Check out the UT Conference on State and Federal Appeals for great input from the panel on exactly how to prepare for that kind of joust.  The members of the panel, Judge Bill Boyce, Darryl Moore and Jennifer Bruch Hogan, are not weathermen.