On May 2, in conjunction with the State Bar’s Solo and Small-Firm Practitioner Forum in Danville, George Somerville and I hosted the second Appellate Practice Symposium, in which we focused on oral argument. The program was timed to give Southside Virginia practitioners a glimpse into what makes oral argument effective, in anticipation of the Supreme Court’s convening of writ panels in that city on July 19.

We were pleased to have a substantial audience, including two other members of the Appellate Practice Subcommittee, John Eure and Joe Winston, who shared their appellate experience with trial lawyers. Of the many topics we covered, none generated more spirited debate than the question of how to prepare an oral argument.

There are two well-defined sides to this debate. The majority view is that an oral argument should be carefully crafted and rehearsed, preferably a few times and to a live audience. That produces the greatest feeling of comfort for the practitioner that his or her words convey, in the most persuasive language possible, the arguments that are to be raised. The opposite end of the spectrum stands for the proposition that such an approach robs the ultimate presentation of most, if not all, of its spontaneity.

This is not a new debate; nor is it unique to appellate advocacy. Within our field, here are advocates for each of the two polar positions, starting with the prevailing view:

Practice! Listen to what you are saying. Whether you use a moot court, a mirror or a tape recorder, don’t let your argument to the court be the first time you hear your own argument. You would think an attorney was incompetent if he dictated a brief and failed to read it before filing it. Presenting an oral argument that has not been practiced is no different.” Frank Friedman, “Persuasive Oral Argument,” in A Guide to Appellate Practice in Virginia, at VI-4 (Virginia CLE 2004)

“I strongly recommend that you rehearse your presentation before several office colleagues, not intimately familiar and emotionally influenced by the case, but who have taken the time to read the briefs and are willing to assume the role of judges and that of your adversary. This is as important as any other phase of preparation. To do this is not to demean your abilities; rather, it is to demonstrate high professionalism. It is not a waste of time and is a legitimate part of your billable hours.” Ruggero J. Aldisert, Winning on Appeal, 2d Ed., §22.8 (NITA 2003)

Judge Ralph Adam Fine hints at the minority view here:

“A good appellate argument is a conversation, not an oration. . . . [P]oints are more forcefully made by speech that has at least the appearance of spontaneity.” Ralph Adam Fine, The “How-to-Win” Appeal Manual, at 68, 69 (Juris 2000)

Judge Aldisert also acknowledges the minority view in the same section of his book, here quoting the late Charles Alan Wright of the University of Texas Law School:

“I would not dream of rehearsing an argument. Indeed I refuse to even discuss a case in the period leading up to when I am going to argue it. At least for my style of argument, freshness and spontaneity are vitally important. I think long and hard about what may be said at oral argument, but I do not put words on paper nor do I discuss the case with others.” Aldisert, id.

It is clear to me from a reading of Judge Aldisert’s book that he sides with the majority, and indeed, that is the safer approach for virtually all practitioners in their first few appearances before an appellate court. But both expressions of the minority view use the same term – spontaneity – to describe the quality that makes an oral argument stand out.

Why, exactly? This is an appellate court, which is principally interested in a logical dissection of the trial record, with an eye toward applying a fixed rule of law in a dispassionate way, right? What role could spontaneity play in such a proceeding?

In order to answer these questions, I suggest a few things upon which we can all agree: (1) Human beings prefer to engage in conduct that is at least passably interesting. (2) A spontaneous conversation is far more interesting than listening to a canned, memorized, or (I shudder even to type this) read script. (3) All the appellate jurists I’ve ever met are human beings. This line of reasoning leads inexorably to the conclusion that the appellate advocate should do what she can to inject at least the appearance of spontaneity into her oral argument.

Now, that is not to say that the minority view is universally correct here. There are a lot of extraordinarily capable appellate lawyers who absolutely insist upon repetitive practice sessions, and they speak from great experience. The key to this is to preserve that air of freshness, within the context of a speech that has been given and edited on several occasions. How do you do that?

I am reading a book right now – actually, I’m listening to the recorded version on CD, which I’m not quite sure isn’t cheating – by the journalist Malcolm Gladwell, titled Blink. In the book, Gladwell examines, among other things, improvisational comedy, and how its practitioners make it work. If you have ever seen an episode of Whose Line Is It, Anyway? then you know how outrageously funny unscripted, completely impromptu comedy can be. So what makes it work? Is it sheer comic genius? Some mutant ability to compose and deliver speech virtually simultaneously? How can comedians think up outrageously funny things to say and do, without knowing what the subject matter will be in advance?

Surprise! It’s preparation. Gladwell discusses how the comedians can prepare, not for specific topics (those are typically selected at random, on the spot, from shouted audience suggestions), but for the “rules of engagement” they plan to use. They may or may not memorize specific jokes, as a stand-up comedian does, but they meticulously rehearse the way in which they will interact. That makes the performance seem completely spontaneous, even though the actors have worked on it in advance.

Appellate lawyers can do the same thing, generally in their preparation for responses to questions from the court, but also in utilizing “segments” of their speeches that can be relocated at a moment’s notice. This is not the kind of presentation that can be effectively rehearsed over and over before a moot court, but it can and should be prepared, whether on paper or in the advocate’s head. It also helps to know how a given phrase sounds – one topic mentioned in the symposium was that words sound different in speech than they do inside your head – so you may want to practice those phrases, even if you choose the minority route.

I don’t have a definitive answer for the question of which view is correct, because there is no one answer. What works for me (I’m in the minority) may be singularly unwise for you. You should do what works best for you in preparing for your presentation. If that’s a number of rehearsed presentations, that’s great; you will achieve a degree of comfort and a measure of security that you aren’t leaving out an essential issue or argument. If you’re okay with preparing several segments – which can be anywhere from three seconds to three minutes – and then weaving those into a speech, that’s fine, but please be aware that this should not be the default method of preparation.

I noted in my “interview” of Cicero on Oral Argument that Winston Churchill was famous for his witty retorts, seemingly concocted on the spot in the heat of debate. What most observers didn’t know is that Churchill practiced, honed, and rehearsed those “off-the-cuff” remarks, and was able to draw on that material when it became necessary – there was nothing remotely spontaneous about them except their appearance. (One of the most celebrated examples is when Lady Astor reportedly said to Churchill, “If you were my husband, I’d put poison in your coffee.” Churchill is said to have replied immediately, “If you were my wife, I’d drink it.”) You, too, can do these things, and you can do them without a rigid script that handcuffs you and leaves you vulnerable to interruptions and devoid of even the semblance of spontaneity.

What’s the secret to this? It’s the same thing as with the impromptu comedians – you prepare carefully, although not necessarily with those handcuffs in place. You know the record in such a way that you can readily give a cite to a page of trial transcript, that you can readily discuss one of the cases cited in your (or, more important, your opponent’s) brief, that you can respond effectively and persuasively to a question that you have figured out is coming.

George Somerville, whom I mentioned at the beginning of this essay, has an outstanding presentation I have heard two or three times, entitled, “Secrets of Appellate Review.” He begins the speech by noting that there are in reality no true secrets to this; it’s just the application of experience and common sense. That’s true of this topic as well, despite my use of the word secret in the last paragraph. Successful, effective appellate advocates win their cases not at the lectern, but while they’re sitting in their offices, preparing. What’s such a big secret about that?