A non-lawyer asked me what oral argument is like recently. My answer? It’s like riding a roller coaster.

When I’m waiting in line for the ride, it might be tedious at times. I start to become a little anxious. As we get closer to the front, I begin to think: “maybe I’m not meant to get on this ride…” In fact, maybe my time would be better spent doing anything else. Life’s short, after all! I question all of my life choices right before it’s time. But once that ride starts, there’s nothing like it. And when it’s over I can’t wait to do it again.

When do I hate being an appeals lawyer? The night before oral argument. When do I love being an appeals lawyer? As soon as argument begins. 

When you’ve argued enough cases (at the trial court level or otherwise), you start to fine-tune the method that works for you. My take? Do more, not less. I know that if I prepare for a question, I probably won’t get asked about it. But if I don’t think through an issue, we will spend most of our time at oral argument talking about it. Let’s jinx ourselves into success.

For those of you who want to feel ready, here are some things you should consider: 

• Start keeping a “hard questions” list from the beginning of a case. Monica Monday once suggested this at a CLE and it’s a great idea. Did you go down a research rabbit hole writing your brief? Write down your question and answer while it’s fresh. Whatever you do, do not rely on your memory. If you’re like me, you will deal with 1,000 new crises between the time when you file your brief and when oral argument happens months later. 
• I once saw a Fourth Circuit judge ask my then-colleague “what is the other side’s best argument?” I now always add that to my list of my own hard questions. It’s easy to get tunnel vision in this job. Be sure to take a step back and try and get perspective.
• Moot your case if you can. Sometimes moots feel harder than argument itself. You’re being judged by your peers and that is hard. But wouldn’t it feel amazing to do a good job and go into argument feeling that much more ready? Conversely, even if it goes poorly, don’t you learn something and isn’t that motivating? It is truly a win-win.
• I write out what my argument would be if I was asked no questions. Ever had a cold bench? It’s disconcerting. Be prepared no matter what. 
• Once I have my full argument written out, I then distill it down into bullet points (which is what I look at during argument). I will write down a record cite or two and highlight the most important portions so I can quickly skim and find what I’m looking for.
• I go through the cases I cited in my brief in the Table of Authorities and jot quick notes down for why I cited them. Maybe I would write “standard of review: abuse of discretion” for one. Or “case about the business dissolution” to jog my memory. Reread your important cases and bring them with you.
• Practice answering hard questions out loud. I’ve seen some very good writers panic at argument. Don’t concede something you don’t mean to concede just because a judge is pushing back. Write down all of your opposing counsel’s best points and be prepared to address them. Hard questions are a gift—not a bad thing. 
• Make sure your research is up to date. You don’t want to be the last one to realize a major decision came out that impacts your issue.
• Ask AI to predict questions. I uploaded the briefing into my subscription AI tool recently and found it to be really helpful. 
• Go back and listen to yourself. Want to be a better oral advocate? Critique yourself on your tone, your persuasiveness, the answers you gave, etc. And ask others to give you constructive feedback. 

Conclusion

Alternate titles for this blog post included: “Those who can’t do, teach” ; “How I gain 15 minutes of fun in exchange for 15 years of therapy”; and “Do as I say, not as I do.”

I’m certainly not perfect and have had my fair share of arguments go awry. My goal, though, is to learn from my own past mistakes and to feel as prepared as possible. Anyone else have any favorite prep tools?

If you ever have a bad argument day, feel free to call me to commiserate and I’ll regale you with some of my own embarrassing stories. Just remember that you’re worried because you care. What we do matters. You’ve got this!