Following up on yesterday's entry, I participated in the U.Maine Law School's moot court program for the first years last night, as one of a three-judge panel asking questions (the other two members were Prof. Dave Owen and Peter Fessenden, the chapter 13 trustee). Justice Alexander was sitting on another panel, along with Terry Garmey and other local lawyers.
As I mentioned before, I always learn from these events, so much as I'd like to say this is a bountiful gift of time on my part, I get more than I give.
Two observations from this latest experience.
1. The value of the rebuttal. The rebuttal in my session was very good. In a previous moot, I heard Libby Mitchell give a rebuttal that was just great. These remind me of the importance of crafting a rebuttal that is capable of responding to whatever the appellee says (the purpose of the rebuttal after all), while tying together your presentation and ending on a wiz-bang note.
2. The students always get better and more comfortable as they go along, which is true for everybody, I think. This leads me to ponder whether there's any way to "warm up" before an argument — like doing a little running before a road race. Some courtrooms have places where the lawyers can sit and study before their case is called (so you don't have to worry about missing your spot if you aren't sitting in the courtroom during the other arguments). That lets you not get distracted by the arguments before you (assuming you aren't first), but (a) doesn't really help warm you up articulation-wise; and (b) I always find it useful to listen to the arguments before mine, for various reasons. Knowing what sort of arguments the court has been exposed to right before yours can be telling.
I've talked with other appellate practitioners about oral argument preparation, and we all seem to be in the same place in terms of the Big Cram the night before or early morning – there's only a limited period of time you can keep the details of a record and legal authorities in your head, so you need to have that last push shortly before arguing. And the more organized the materials you take and the more prepared you are generally in the themes of your argument, the more comfortable you will be. So unless someone comes up with something better, I think I'm sticking to this usual approach. But if there's another way to "warm up" right before an argument, I'm all ears.