Appellate Insights

The justices often begin argument by instructing counsel not to repeat what is in their briefs.  On the other hand, you can’t raise anything new.  But if you can’t say anything old or new, what can you say?

• This is your opportunity to re-think how you present the case.  Not new issues.  But new, interesting angles.

• Boil your case down to its essence until there is nothing left but the core that you are trying to defend.  Oral argument is rarely about the intricacies of cited cases.  Use your time to explain why yours is the sensible result.

• Consider acknowledging your opponent’s best or must-win arguments and focus on your best response to them.

• This isn’t a time for speeches.  Your goal is to coax the justices into an intelligent conversation that pushes their thinking about your case.  That means being prepared to discuss everything, but being extemporaneous to keep the conversation flowing.

▶ The practical message:  Prepare intensely and creatively.  Don’t rehearse exactly what you will say for every conceivable question; prepare so that you can engage in a discussion.