Appellate Insights

Oral argument brings some predictable questions—and some that the briefing lawyer wouldn’t easily think of.  Diligent solo preparation can cover most of the predictable ground.  But arguing counsel needs the insights of lawyers or client representatives who didn’t work on the briefs, to prepare for “left-field” or less-informed questions on argument day.

Here are some ways that GMSR lawyers test our solo preparation—often involving a partner who’s had no previous role and just reads the briefs.  Each of these approaches lasts 1-4 hours, but they vary in total time investment, so the choice depends on the case.

• Roundtable.  A strategy discussion led by the arguing attorney, going in and out of question-and-answer “role.”
• Informal moot court.  Arguing counsel stays in-role for a good while (with small breaks), testing the presentation, with client representatives and other members of the counsel team asking questions.  “Debriefing” afterward.
• Formal moot court.  A mock panel of 2-5 retired judges/justices, partners, or co-counsel asking questions, with arguing counsel fully in-role, and another team member presenting the opponent’s best oral argument, as if appearing in court.  “Debriefing” afterward.

►  The practical message:  The appellate panel testing your position at oral argument will be strangers to the case, so full preparation requires knowing how others see things.