Everyone knows that you get better at something by doing it (there’s a news flash). But just as new lawyers complain that they can’t get practice doing trials because there aren’t any anymore, the question always comes up about how to get trained at the appellate level.
There are training classes (I went to a good NITA course a long while back), and there’s the whole world of mooting, which I will leave for another day. But both are expensive and sometimes not very real life. So here’s a cheap and nifty alternative.
Many courts are now providing access to their oral arguments. The policies of various courts are noted below. They run the gamut from (a) no way can you get your mitts on our secret chambers; to (b) ok, we’ll mail you a copy if you pony up the bucks and help balance our poor judicial budget (for $26, which seems to be the going price, the First Circuit gives you the whole day’s arguments on the disc); to (c) hey, we’re here, we’re streaming, we’re free! This last group posts on line, which means that you can download it to a CD yourself, as I have (who am I kidding, our crackerjack IT team did it for me). The last I checked, Maine SJC will let you trot down to the clerk’s office as soon as the day after argument to download onto your cd.
So here’s what I’ve done. I’ve taken arguments that have been downloaded onto CDs and listened to them in my car. I like to play "let’s get interactive!" I listen to a question, stop the CD player, and give my answer. (Always out loud; you never realize how idiotic or longwinded an answer is unless you hear it out loud). Then I turn the player back on, listen to what the actual arguing lawyer said, and think about whose answer was better, and why. Hours of endless fun.
You can also download onto your iPod instead of a CD and do this wherever – walking the dog, making dinner, taking a bath (don’t drop the iPod in the water). If you do it outside, people might look at you a little strangely for talking out loud; just pretend you are bluetoothing on your cell phone.
A few weeks before argument, the SJC posts what cases are going to be heard, identifying the lawyers and what each case is about. So while this is obviously more helpful if you know something about the case and prepare a little, and it’s always better to show up in person and see the dynamics, if you don’t have that kind of time, you can just check the web site to see when someone good is arguing, get a cd and just listen.
The availability of these arguments means, of course, that you can now listen to your own arguments after the fact. This is a valuable learning experience, too, but not for the faint of heart. Not only are you confronted with the fact that you do not have the dulcet tones of a Lauren Bacall or the booming basso profundo of a James Earl Jones (that latter is a particular disappointment for me), but you can find yourself beating your head against the wall and moaning, “no, no, if I had only said x ….”
But if you grit your teeth and keep doing this, maybe next time you will say x, the seas will part and victory will be yours. Or at least you’ll get better.
The U.S. Supreme Court
Written Transcripts since October 2000 available on web site: http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html
Recordings not available on their website, but some are available on Oyez website and through other methods:
The Court also makes its own set of oral argument recordings. This set of recordings is kept in the Marshal’s Office for the remainder of the Term, during which time it is not available to the general public. At the beginning of the next Term, the recordings are transmitted from the Marshal to the Motion Picture, Sound, and Video Branch of the National Archives. The Archives’ collection contains audio recordings of Supreme Court oral arguments from 1955 through the immediately preceding October Term. Members of the public can listen to or make their own copies of oral argument recordings using their own tape recorders, blank tapes, and patch cords at the Motion Picture, Sound, and Video Branch. Copies of recordings can also be purchased from the Archives. To listen to or purchase a copy of a recording, the Archives asks that individuals requesting recordings provide the case title, Supreme Court case number, and date of the oral argument. Although no formal appointment is required to listen to recordings, the Archives recommends that individuals interested in retrieving copies make sure the Archives has a “reference copy” of the particular argument they are looking for prior to visiting the Motion Picture, Sound, and Video Branch.
Many recordings of oral arguments are also available on the Oyez Project [http://www.oyez.org/] website created and maintained by Professor Jerry Goldman of Northwestern University. This website allows access to approximately 588 cases through the use of the RealNetwork’s RealPlayer. The cases cover a wide range of time periods and areas of constitutional law and are digitized from actual copies of the official argument tapes held by the National Archives. To access arguments through the website, click on “Cases” on the homepage to search by title, citation, subject, or date. The website offers new audio materials from a Term approximately 10 months after the end of that Term.
Many Supreme Court oral argument recordings and/or transcripts are also available in published collections that can be purchased. The multi-volume set, Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, edited by Professors Gerald Gunther and Gerhard Casper, contains oral argument transcripts and all written briefs submitted to the Court (including amicus curiae briefs) for major cases in constitutional law that are considered “landmark” cases by the editors. Purchases must be made by volume (not by individual case) and each volume is hardbound and approximately 750 pages. This set is also available at various law libraries.
Another collection of oral arguments is The Supreme Court’s Greatest Hits. This multimedia CD-ROM program currently costs $29.95 and comprises oral arguments (taped and digitally encoded directly from the Archives’ official recordings), texts, and images. The program, edited by Professor Jerry Goldman, creator of the Oyez Project, includes fifty cases, six related cases that were argued separately but decided with a principal case, and thirteen opinion pronouncements.
Oral argument collections are also available on microfiche. The Congressional Information Service (CIS) produces a microfiche collection called Oral Arguments of the U. S. Supreme Court. This collection includes oral argument transcripts from the 1953 Term to the present and can be purchased from CIS, which sells microfiches only by Term (not by individual argument). The collection can also be found at various law libraries.
E. Recording. Oral arguments in all cases are digitally recorded for the use of the Court and are not part of the permanent record of the case. A disk copy of the recording of an oral argument may be obtained by submitting a request in writing to the Clerk with a check in the amount prescribed by the Judicial Conference of the United States. The Schedule of Fees is posted on this court’s website at www.ca1.uscourts.gov.
(5) For reproduction of recordings of proceedings, regardless of the medium, $26, including the cost of materials. This fee shall apply to services rendered on behalf of the United States if the reproduction of the recording is available electronically.
Audio Tape of Argument. An audio tape of an argument may be purchased for $26 per tape by written request to the Clerk. The request should include the case name, the docket number and the date or oral argument. Tapes will be delivered by first class mail unless the request instructs to hold for pick-up or requests Federal Express Service, in which case a Federal Express account number and envelope must be provided.
ORAL ARGUMENT CD’S: The courtroom deputy makes a digital recording of each oral argument. A CD of the oral argument in a particular case may be requested by letter, enclosing a check payable to Clerk, U.S. Court of Appeals, in the amount of $26. It takes 7-10 days to fill the request. Official transcripts of oral arguments are not prepared.
This site contains oral argument recordings released from May 21, 2008 to the present in Windows Media Audio format.
(i) Recording of Proceedings. An audio recording of the proceedings may be requested in writing from the clerk’s office. If the request is granted, a fee will be required. See I.O.P. 103.
For reproduction of recordings of proceedings, regardless of the medium, $26, including the cost of materials. This fee shall apply to services rendered on behalf of the United States if the reproduction of the recording is available electronically.
Available in MP3 format. Not clear how far back they are available.
Oral arguments from 2000 to present in MP3 format
Windows Media Audio format. Not clear how far back they are available.
(E) Recording. Oral argument may be electronically recorded for the exclusive use of the court. No other recording is allowed. Counsel or parties may move for permission to arrange, at their own expense, for a qualified court reporter to be present and to report and transcribe oral argument. A copy of the transcript must be filed with the circuit clerk.
(g) Recording Oral Arguments. Oral argument is recorded for exclusive use of the court. Neither the recording nor a transcript thereof will be made available to counsel or the parties. With advance approval of the court, however, counsel may arrange and pay for a qualified court reporter to be present to record and transcribe the oral argument for counsel’s personal use. Recording of court proceedings by anyone other than the court is prohibited.
At its November 14, 1995, Judges’ Meeting, the Court revised its policy on the availability of recordings and transcripts of oral arguments. The new policy is as follows:
1. Only a person who is an attorney or litigant in the case may listen to oral argument tapes.
2. No person will be given permission to tape an oral argument.
3. Any person may request that a transcript of the oral argument be made at his/her expense. This transcript will be made as part of an arrangement between the requestor and the company to which the Court refers the requestor. The cost will include the expense of preparing one copy of the transcript for the requestor and four copies for the Court.
4. Any person may request a copy of the oral argument tape after the case has been completely closed. This means that all appeals, remands, or other additional proceedings must be concluded before the tape will be reproduced. Reproductions will be priced pursuant to the Miscellaneous Fee Schedule approved by the Judicial Conference of the United States. [Currently, reproductions cost $26.]
5. The Court will consider requests for a waiver of the above policy upon a showing of good cause.
6. Oral argument tapes will be retained in the Clerk’s Office for a period of two years after the issuance of a mandate in the case, then they will be destroyed.