Bananas for Breakfast … And More Advice for SCOTUS Advocates
At a recent Harvard Law School panel discussion on appellate advocacy that included Chief Justice John Roberts Jr., Topic A was how to prepare for and survive oral argument at the U.S. Supreme Court.
December 01, 2017 at 04:41 PM
5 minute read
At a recent Harvard Law School panel discussion on appellate advocacy that included Chief Justice John Roberts Jr., Topic A was how to prepare for and survive oral argument at the U.S. Supreme Court.
Advice ranged from writing out and repeating your first sentence—you might not get to say anything else before being interrupted—to wearing the same pearls to every argument, and eating fish the night before and bananas the morning of oral argument. Yes, lots of bananas.
“I do think that food rituals are very important,” said Elizabeth Prelogar, an assistant to the U.S. solicitor general who has been detailed to help special counsel Robert Mueller. “I have the same dinner before every oral argument. I eat salmon, which is a super food, it's good for your brain. In the morning of, I eat bananas—a lot of bananas like two, three, sometimes four. It's the only thing I can stomach with all the anxiety, but it gives me hopefully a good grounding for the argument.”
Other words of appellate wisdom:
Be Fair to the Case: Roberts, who argued 39 cases before becoming a judge, urged advocates not to overstate their case at argument. “It's uncomfortable if you're a judge and one side comes in and says, 'This is absolutely clear, only an idiot would think otherwise,' and the other side says the same thing. Because you're thinking, 'Well I'm an idiot one way or the other.' If you can be fair to the case and not take an immediately extreme position, I always like it when lawyers give something up when they should. There was one time we had recently where one of my colleagues asked about a case, and the lawyer says, 'I was hoping you wouldn't ask about that case,' which is a very refreshing reply.”
Talk It Through: “I do a ton of talking,” Prelogar said. “I talk out loud to myself in my office with the door shut so no one thinks I'm crazy and I just process the case. I think about all of the questions and then I don't want to rehearse actual wording for answers, but I feel that talking out loud and trying to actually articulate the points helps me focus on which ones are going to be most persuasive. … The fact is that if I've got three good points I want to make, usually I'm only going to have a chance to get one of them out in response to a question before the argument veers off course and I get asked something entirely different.”
Get Ready to Improvise: “The essence of preparation is to be prepared to improvise,” said Kathleen Sullivan, partner at Quinn Emanuel Urquhart & Sullivan. “I've often likened an oral argument to jazz, if you're a music aficionado. There's a lot of preparation that goes into that conversation between the instruments. But once it's happening, it has to be somewhat spontaneous.”
But Also, Stick to Rituals: “My rituals are all about preparing questions and answers,” Sullivan said. “Do moot courts with colleagues including colleagues who are not familiar with the case so that you can try out your questions and answers. Then I go back and I rewrite the answers after each moot court write the questions, write the answers, and try to make everything shorter and shorter and shorter. … Write out your first sentence. … Repeat that a lot. Of course, you must always have the same meal, you must always stay at the same hotel and you must always wear the same suit, the same pearls until the suit wears out. … Fish the night before and bananas in the morning. Doesn't everybody?”
It's a Conversation: “It was a remarkable revelation when you step to the lectern in the Supreme Court as I did for the first time when I was 34, and the justices are right in front of you at eye level, not more than a few feet away,” said Lawrence Robbins, partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber. “It lends itself to … the word 'conversation.' It lends itself to the feeling, oddly enough, of informality. Now of course, you don't handle it informally. If you think of it as a conversation where your job is to help the court and help the members and answer their question and not be wedded to the points you think are necessarily the most important … I think that's the beginning of the right way to do this.”
Stay Calm: Said Prelogar, “I was in the courtroom one day, not arguing myself, thankfully, when an individual stood up and started protesting in the middle of the argument. … It was startling because the court is such a solemn place, a quiet place, but what really stood out about it to me was that the advocates who were arguing were not thrown off kilter at all. They had perfect grace in the light of that surprising circumstance and picked right up with the argument. It really was a learning experience for me to see that no matter what's thrown at you, whether it's something from the bench or in the audience, you can have composure.”
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