On Sunday evening, I will be heading to Salt Lake City. The Tenth Circuit is "riding circuit" and holding court week in SLC, and I have two arguments on the calendar. I'm also planning to meet with a client and some colleagues while I'm in town, and if I'm lucky, I might squeeze in a few runs at Alta.
For a variety of reasons (mostly because, for much 2004 and the first part of 2005, I had a half-dozen or so habeas cases moving at the speed of mud through the district court), I have not had a Tenth Circuit argument for 18 months. You may recall that my last oral argument was presented under challenging circumstances, and that it also resulted in a win.
In the time since I last argued, I have briefed over a dozen appeals, many of which are scheduled for argument this year. I have two cases on the March docket, three up in May (two of those are consolidated for argument purposes), and at least two more that will be argued this fall. Assuming that the infrared systems hold up for me, this is completely awesome. As far as I’m concerned, few aspects of lawyering are more fun (albeit nerve-wracking and challenging) than appellate argument.
Because I’ve had a slew of briefing deadlines in recent weeks, I wasn’t able to turn to my argument preparation in earnest until Monday. The two cases I’m arguing next week are vastly different from one another, and both are complex and confusing. I worked into the wee hours all week long (taking a break only for my standing Wednesday night climbing date), immersing myself in the briefs, records, and research for each case. I found myself toggling back and forth between them, ideas popping into my head for Case A even as I was trying to condense my thoughts on Case B. By the time I finally got home last night, I was feeling drained, distracted, and discouraged (but, apparently, also alliterative!).
Today, two of my colleagues helped me pull it all together. The "mooting" process, in which we pepper one another with questions, and deconstruct the strengths, weaknesses, and policy implications of a case, is an invaluable preparation tool. When a session begins, I inevitably find myself stumbling over my introductory phrases, realizing how long and cumbersome they are, and how bogged down I have gotten in the factual and legal intricacies of my case. But by the time we finish, often hours later, I will have distilled my opening into something clear, sharp and tight enough that I can probably say it all before the judges start questioning me (and, hopefully, draw an immediate question).
The process is not for the thin-skinned, as it reveals all the brilliant points I may have failed to make, or to make adequately, in my briefs. It also highlights the problem areas the judges surely will want me to address. But in no argument yet have the judges hit me with issues my colleagues failed to foresee, and in most cases, the internal questioning turns out to be at least as rigorous and incisive as that during the actual argument.
I have work still to do, but at least I feel excited and confident, rather than frazzled and overwhelmed. Now I can turn to other important tasks, like finding myself a new suit!
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