Robert H. Jackson, Associate Justice of the United States Supreme Court and former United States Attorney General, made a famous observation about appellate argument:
I made three arguments of every case. First, came the one that I planned as I thought—logical, coherent, complete. Second was the one actually presented—interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.
I made my first appellate argument today and I can tell you that Justice Jackson was right on the money.
During the three weeks before my argument, I had a hard time thinking about anything besides the case. When I woke up in the morning, there was the case. When I went to bed at night, there was the case. When nothing else was distracting me, there was the case. It felt a lot like preparing for the bar exam. But I worked out my argument, filling many pages of legal pads with different arguments and concepts, talking through the whole thing hundreds of times. It was all there! Logical, coherent, complete.
Then I showed up at the Court of Appeal this morning, steeped in my case. Ready to throw it all out there for the client, to get the panel of three justices on my side, to show them why my client ought to win. And I got up there at the lectern. Yes, your honor, I would like to reserve time for rebuttal. Sure, five minutes would be fine. Thank you. Adjust the microphone. Start talking. And keep talking. And talk some more. (Why aren’t they asking me any questions? I keep looking at my notes, but the words are more like blobs. But I know what they say anyway.) The panel eventually starts asking questions. The first few are easy. Nothing I didn’t expect. Then suddenly they sound very stern and I am trying to figure out why the words coming out of my mouth don’t sound like the ones I practiced. What’s going on here? Interrupted, incoherent, disjointed, disappointing.
Now I’m at home, ten hours later, with a beverage. I’m thinking about all the things I could have said, but didn’t, and all the things I did say but maybe shouldn’t have said. (Wait, did I really say that? Did I really say that? Didn’t I have much better arguments lined up in my preparation? And the lame one is what came out of my mouth? The last resort, only-use-this-one-when-you’re-absolutely-desperate argument?) Apply palm to forehead now.
Justice Jackson had it exactly right. It’s hard to explain just how difficult it is to make appellate arguments. While I was preparing, I kept thinking about watching Kenneth Starr before the California Supreme Court in the Proposition 8 case, how smooth he was, how he made an argument that I thought was absolutely ludicrous, but he managed to make it sound halfway credible. I thought, “That’s what I need to do.” Yeah, maybe next time.
Did you achieve your goal though? Did you get the justices on your side?
Won’t know until the opinion comes down.
I would do all of those things in addition to feeling nauseated.
I remember the first time I had to make a presentation at our shareholders meeting and tell 25 surgeons that they need to trust me on a business decision (which it’s really their business but they don’t “run” the business, they run the clinical and have myself, my CEO and co-managers run the business). It was extremely stressful especially when my boss decides to question me as if she and I had not already discussed my presentation prior to the meeting. Ugh. Definitely went home and had beverageS with re-runs playing in my head all night.
Hope you get a favorable opinion.
Unfortunately, I did not get a favorable opinion.
Bummer. Well, you have the first one under your belt. Like they say in medicine (and seems appropriate in law as well) they don’t call it “practice” for nothing.