I'm back from the ABA AJEI summit for appellate practice, which was very educational, but before I launch into a blow-by-blow, l thought I'd use this entry for an overview and theme highlights.
First, this conference differs from the DRI and AAAL conferences in that it's a joint court-lawyer group. The private practitioners were outnumbered here about 3:1 by judges and court personnel.
Some themes that ran through multiple presentations include the following.
Ipads. The courts are apparently all getting them – 25 9th Cir judges use them now, many other circuits also budget for these, and lots of state courts even with budget constraints are buying them, too. And even if some older judges aren't using them, the younger judges are and the clerks are reading everything on line. What this means specifically in terms of what your brief should look like, I will get into more detail in discussing a specific program focusing on that issue. But at a minimum, I think it would behoove all who don't have ipads now at least to go off to Apple.com and see what a lot of judges are seeing.
Appellate practice +. Even the trial litigator presentor was extolling the benefits of working with the appellate practitioner early on through the process from the beginning, and how the appellate lawyer is really more than that – one firm calls them at the trial level the "motions" specialist. Various representatives of different constituencies (including clients), talked about the usefulness of the appellate practitioners' views early for strategy and looking at the big picture. The trial litigator is really in the trenches, dealing with discovery and fact collecting, while the appellate worker has a more holistic perspective. One speaker referred to the trial litigator as the play-by-play announcer, and the appellate specialist, the color commentator.
Okay, so Day 1 began with a conversation with Justice Sotomayor. This was off the record, so I'm not going to discuss what she said (not that any of it was particularly controversial), but I would note that she does seem like about the most straightforward (if not blunt) Supreme Court Justice I've ever heard speak, which was nice. She also said one thing about style I thought interesting (that she has stated publicly before). She said that lawyers need to understand what their particular personality and style is, and be true to it, but also must be flexible enough so that if another approach is required, they can do that, too. So, for example, if your natural way of arguing is less or more aggressive sounding, that's fine – but be prepared to go the other way if you must.
The next session was on oral argument, and this was a panoply of Supreme Court practitioners like Paul Clement. So I'm only going to highlight the points also useful for those of us in the trenches who, strangely, may not have clients able to afford doing 4 moots:
- read the cases at some point in chronological order, to get a feel as to how the law developed. I thought that was an excellent recommendation.
- do the old Roberts notecard preparation – write out short and snappy answers to anticipated questions on notecards, so you know you can answer concisely. You can also shuffle these around and it helps you prepare how to stay on message.
- Because Paul Clement, who never carries anything to the podium, was there, there was a lot of discussion about what to bring to the podium. Most took cheat sheets of some sort with them. Clement's point was that it invites conversation to work without notes. But I think you can do that with a few pieces of paper there too. The common point – invite conversation – is the one that counts.
- the majority view was as the respondent, use your opening two minutes to re-set the argument. The best way to do this, however, is to tie the point that you always wanted to make to one of the questions or comments of the court during the petitioner's argument. And use the judge's name. It's just human nature to perk up and listen when you hear your own name (not just human – remember that Far Side cartoon of the dog looking at its owner talking to it, with all the dog hearing untelligible except his name? — "Xrgh fido, xxrty fido," etc.?) So say "I'd like to respond to the issue raised by Justice X," before launching into your point.
- for rebuttal, the consensus was (a) always reserve time, because that keeps your opponent honest, knowing you can get up and correct him; and (b) don't rise to the bait of petty squabbles. Focus on the issue that will move to the vote you need. At rebuttal, the court has often started thinking about the next step, so you must grab their attention.
- the hijacking judge – first, the more aggressive the judge gets, the more respectful you get. Understand that s/he is probably trying to get you to concede something, and will leave you alone if you do, so you need a firm grasp of what you can concede before argument; also, if the other judges aren't interrupting, this can be an opportunity – stay with the judge and focus.
- note that friendly questions can be dangerous not just because sometimes you can't tell whether it is friendly, but because you need to get everyone else's vote, and you need to concentrate on the questions of those who may not yet be convinced. So think about how to answer in a way that could persuade the yet-persuaded votes you need.
- Judge Sutton on the Sixth Circuit said that the thing lawyers probably understand the least about this process is the desire among the court to drive toward a consensus. They want to avoid dissent, and build a unified path. So it isn't just a matter of persuading individuals judges, who may have different nuanced views; rather, it's persuading the panel of a position that they can all agree to. I thought this was a very good point, too.
- on the old question how much does argument matter, the consensus was that it's easier to lose at argument as opposed to win.
- think of the briefs you file and the argument as steps on one path. Good briefs focus on the best arguments, while the argument is to get you over the finish line. The argument is not a re-hash – it's all one continuum, and you need to keep this in mind and frame accordingly from the beginning.
More to come.