Nearly two years ago in this newsletter, I offered some advice to you, my adversaries, on brief writing. See “Advice to Young Lawyers: Legal Writing for My Adversaries,” App. Prac. J., Spring 2010. That advice was so well received that I thought I should round things out with some advice on oral argument. Love your enemies and do good unto them that oppose you—that’s what I was taught. Just because you may be on the wrong side of things, while I fight for all that is good and just, doesn’t mean we can’t learn from each other. So I offer the following words of wisdom to you, my esteemed opposing counsel, sincerely and in good faith. No, really, I do.
The first thing to remember is that you need to have the proper frame of mind as you begin to think about your upcoming oral argument. Make no attempt to view your position with doubt or skepticism, as an appellate court judge might, particularly if you’re the appellant. That way of thinking will only undermine your confidence. Ignore the difficulties of your case. You must believe the court will accept your arguments hook, line, and sinker; indeed, you can never have too much confidence in your position. This will prepare you for the moment in oral argument when you realize the court doesn’t necessarily sees things your way. With the proper frame of mind, not only will you be able to deal with this adversity, but also you’ll be outraged! And this is exactly how you want to appear at oral argument. That way the court will know that whatever doubts it ever had about your case were clearly mistaken.