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

Alas, the UTCLE Conference on State and Federal Appeals is over.  But what a fantastic gathering.  The speakers were better than ever and I never fail to learn whenever I attend.  And attending year after year makes it feel like old home week.

Many thanks to the organizers of the conference for inviting me to participate, and thanks as well to Judge Bill Boyce, Jennifer Hogan, and Daryl Moore for agreeing to share their secrets on how to prepare for oral argument.  It made the material much easier to present, much more engaging for the audience, and much much better than just my own method of preparation.

I have had some requests for the paper, so, if you are interested, I am posting the paper here. 

Mark it down and attend next year if you can.  All the cool kids do it.

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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. 

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I wrote here and here about the Conference on State and Federal Appeals on June 3 and 4, as well as my presentation on preparing for oral argument.  Giving a presentation about exactly how and why I do what you do kind of feels like cheating because I wind up learning way more than the group I'm purportedly "teaching." 

One of the lessons I rediscovered was how important it is to take my time when I'm preparing for argument.  The temptation is always there to start creating outlines too soon and figuring out what you're going to say.  This is a mistake.  The first step for preparation that I wrote about in the paper is:

Step One: DON’T Figure Out What You’re Going To Say

I have a paper weight with the quotation, “Good writing is clear thinking made visible.” By the same measure, “Good argument is clear thinking made audible.” One of the biggest temptations in writing a brief is the temptation of writing too soon, before your thinking is clear and before you have a plan. In my view it is the same with oral argument.

There are many hoops to jump through before your thinking is clear enough that you can possibly have any idea what ought to be said. . . .

So, like a good doctor, first, do no harm. Like a good carpenter, measure twice, cut once. Don’t start by trying to figure out what you’re going to say. Get your thinking clear, and do the following steps first.

The rest of the paper is nine steps I use to create and learn all the information I need in a short argument outline.  But none of that creation or learning takes place if I just sit down with pad and paper to "draft" an argument outline from the outset. 

I hope you get to come to the conference and introduce yourself in real life.  UT always puts together a good program, and I know my panel members, Daryl Moore, Jennifer Bruch Hogan,  and Judge Bill Boyce will  have good content on how to get your thinking clear for argument.

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In earlier post I mentioned the paper I am writing on oral argument and the presentation to be given at the UT Conference on State and Federal Appeals held June 3 and 4.  The first part of that paper is about why we hold oral argument at all.  The second part is a blow-by-blow account of how I prepare, as just one suggested method for how to do it well.

As I got down to writing the paper, I noticed something about my method that I had never thought about.  With all the techie tools available to me, my studying is still very 19th Century.  As it turns out, I think that's a good thing:

• My method tends to be very analogue and slow—physically looking at the record or writing certain things in long hand as opposed to using lots of digital tools or applications. 
• My method involves repeated exposure to the same information in different contexts using different, physical senses.
• As a result, my method accidentally incorporates some of the things I learned 30 years ago in my one undergraduate “Educational Psychology” class.

The Ed-Psych researchers that we studied found that repeated exposure to information, using multiple senses to draw relationships and connections was the way to master academic material. So, why not bring those same techniques to bear in “studying” for the oral argument test? 

Just like history class or conjugating French verbs, I literally make flash cards of anticipated hard questions and how I will answer them, flash cards for all the key cases, etc. and then I drill the same as I would for any other "exam."  I physically read the record on paper because it makes a visual imprint.  I say things out loud because hearing helps me remember.  I study as if I will be tested--because I will.  Those folks in the black robes like to ask questions, and I'd much rather have them do so than speechify to a bunch of potted plants.

And I'm sure I'm not the only one that reverts to my school days when preparing.  Help me out.  What are your prep methods that carry over from school?  What is the trick in your tool bag that works best for you?

But if you want my 10 Easy Steps to Making Oral Argument Fun And Simple (and the scintillating discussion of the panel members, Judge Bill Boyce, Jennifer Bruch Hogan and Daryl Moore) you'll have to attend the conference!

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On June 3 and 4, UT will hold its annual Conference on State and Federal Appeals at the Four Seasons Hotel in Austin. I'm lucky enough to get to speak at the conference again.

This year, I wanted to take up the topic of oral argument preparation--not the typical "how to argue" topic (listen to the judges, answer the questions, blah, blah blah), but a real nuts and bolts presentation on the steps one goes through from the time one gets the argument setting to the day of argument. 

Joining me for that presentation will be Judge Bill Boyce, Jennifer Bruch Hogan and Daryl Moore, thorough preparers all. 

The paper and the presentation will also try to make the case that oral argument still matters, even in the era where we idealize the legalist, umpire judge who just calls the balls and strikes:

 

            We idealize the judge who is the icy legalist. As Chief Justice Roberts put it during his confirmation hearings, the good judge is merely an umpire who calls the balls and strikes. And this idealized passivity is no new development. The Federalist Papers speak of judges that (unlike the executive or legislative branches) exercise “judgment,” but not “will.”

That kind of judge certainly would never be swayed by the dulcet tones of a mere orator, right?  But are all the questions to be decided truly cold and legal?  And contrast that with the old British system.  It had its drawbacks, of course, but its emphasis on full oral development of the case let the public and the litigants have some level of confidence in the work of the court, which they had themselves observed first hand:

Proceeding orally step-by-step through the case, reading aloud pertinent written material, assures that each one of the three judges is having the same matter put before him and is focusing at the same time on the same facts, issues, and arguments. Three minds are working in harness together, heading toward a collegial decision. The judges' minds are exposed for all the world to see. There is little ground for anyone to doubt that a judge considered every point, because everyone in the courtroom can see whether each judge is listening and participating-as he usually is-or, equally important, whether he is asleep or inattentive.

(quoting Daniel J. Meador, English Appellate Judges From An American Perspective, 66 Geo. L. Rev. 1349 (1977)).

The conclusion I came to (and will demonstrate on the day) is that oral argument very much still counts.  As legalist as we want to believe ourselves to be, there are many legal questions that are not as concrete as doing sums.  Likewise, it is important for the parties and the public to see justice being done, and in appellate cases, that can only happen in oral argument. 

The second part of the presentation is entirely taken up with steps for preparation.  Watch this space for a preview of that, but I'd love to hear from some others.  Feel free to send me an e-mail or leave a comment describing your method for getting sharp in advance of argument. 

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