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Oral argument can be one of the most stressful tasks a lawyer routinely performs in the course of their work as an attorney. It is hard to predict what judges might ask during oral argument, and lawyers might think they will mess up and not know an answer if they are asked something unpredictable by a court. In addition, oral argument is usually attended by other attorneys and sometimes clients, and lawyers naturally want to perform well in front of others. Some lawyers go to great lengths to prepare for oral argument, and many times, this effort is not needed.
I have worked for numerous lawyers throughout my career who overprepared for oral argument in intense ways. For instance, as an associate in Biglaw, I worked for an attorney who was arguing an appeal. The partner asked a bunch of associates to print each and every case and other authority cited in all of the appellate briefs and compile them in binders. Then, the associates had to bring the dozen or so binders of authorities to oral argument so that the partner could consult a case or other authority if needed during the proceeding.
This was a huge undertaking. It took a handful of associates the better part of a day to print out all of the authorities, three-hole punch the pages, and compile them in binders with tabs. We even had to draft a table of authorities so that you could tell which cases were in each of the binders. It was very difficult to bring the binders to oral argument. We all took public transit to the courthouse, but the courthouse was a little under a mile from the train. We needed to carry the binders to the court from the train, and we needed to make frequent stops along the way to rest our arms.
During oral argument, the partner did not consult any of the binders a single time. I am not sure how the partner would be able to consult the binders during oral argument, since the proceeding was extremely fast-paced, and I doubt the judges would have appreciated a lawyer taking the time to flip through and read any of the authorities. After oral arguments, I wanted to just throw the binders away, but the partner said we couldn’t leave attorney work product behind, so we had to schlep the binders back to the office to my great annoyance and that of my fellow associates. Perhaps the partner felt more secure knowing that he had all of these resources at his disposal during oral argument. However, associates should not need to spend so much time and effort lugging documents around that would have almost no practical use during oral argument.
In my own career, I have also overprepared for oral argument. Once, I had a big oral argument, and I asked a colleague what I should do to prepare since this colleague recently had a major victory after oral argument. This colleague told me that I should prepare a kind of script with my opening thoughts and perhaps script answers to a few questions I was pretty sure I would get. If I stumbled during the oral argument, I could just consult this script and get my footing back in no time.
I spent a considerable amount of time on my script so that I could recite everything offhand very easily. I practiced my script at all times of the day, including when I was in the car or in the shower, which might have scared people who thought I was talking to myself. I had the script right next to the camera on my iPad so that I could read from it if necessary during the virtual hearing without it looking too much like I was reading from prepared remarks.
However, I did not consult the script at any point during oral argument, and I never used any of my prepared remarks during oral argument. The court focused on issues I did not think would be too important to the oral arguments, and I had to make up remarks on the fly and answer questions for which I had not prepared during oral arguments. Of course, the oral argument went fine, and I was not limited by not preparing for the issues that were queried by the court. Sure, the preparations had made me more confident for the oral argument, but in hindsight, I wish I did not spend so much time preparing for oral argument when most of the preparations were not needed.
All told, it is important to prepare for oral arguments by reviewing relevant materials and refreshing yourself on the facts related to a case. However, there is usually no need to overprepare for oral argument in any extreme way.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.
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