Last week a friend at work asked me to sit as a judge for a class he teaches in appellate advocacy at JFK Law School. After a certain amount of polite grumbling (it required driving into SF in rush hour traffic) I agreed. As I was subsequently sitting in that traffic, I began pondering what ultimate wisdom I could impart to these students about oral advocacy. The entire drive over (which was long to say the least) I considered the pearls of wisdom Ric had imparted to me before my first oral argument, comments by Justice Scalia and Bryan Garner from their amazing seminar I attended last summer . . . By the time I reached the 9th Circuit's courthouse in SF, I was feeling very blessed to have such amazing mentors in my own career.
By the time I left, I had to chuckle. I walked into the 9th Circuit that evening thinking I was doing a favor for a friend and a service for some law students. After I got over the initial uncomfortableness with donning an actual robe and sitting at the bench (it felt somehow sacrilegious . . . like dressing as a priest while attending the church Halloween party) I realized that watching a serious of students argue from the judge's perspective was probably one of the most valuable learning experiences I've ever had in oral advocacy. No amount of seminars, CLE classes, or even actual arguments, can truly give you a chance to view an argument from that perspective.
The students did a great job. But, listening to how they formed their arguments and the syllogisms they used was so important. It was easy, at times, to lose track of where they were going with their reasoning when it was not extremely clear, succinct, and laid out at the beginning of their arguments. Using indicators to tell us that they were now moving to a different area of their arguments was extremely helpful. And most interesting was my almost visceral reaction when one student claimed he was citing the statute and ended up quoting a portion of the legislative history. It was not intentional -- and he was nervous -- but the misquote jumped out at me and made it very hard for me to follow the remainder of his argument. Moreover, I found myself becoming very suspicious of his other arguments and wanting to turn to the record after each statement he made in order to check its veracity.
Not that any of these are new tips on oral argument, but I don't know that anything can compare to actually experiencing how helpful and important these things are to the justices sitting in front of you.
Long story short: If you get an opportunity to participate in such an exercise, I highly recommend it. It is a great public service, and you may learn more than you anticipate.
