I have spent a lifetime involved in sports, including over 20 years as a youth and high school football coach. I have learned that oral argument preparation is no different than game preparation. You don’t just draw up plays and hope to execute them on game day. You run them over and over and over in practice. You have certain plays for certain situations. You practice your two-minute drill, knowing you may have to roll into it if the situation presents itself. You would never think to just show up to the game with your head full of knowledge hoping it all works out on the field.
Same with oral argument. Don’t stand in court and hear your voice for the first time trying to articulate the argument. Rehearse it. And do so as much as you can in the conditions in which you will be delivering it: Not sitting at your desk with crap scattered around you mumbling to yourself. Do it on your feet, eyes up, outline down, projecting your voice, hearing yourself make the argument. I have a portable lectern that sits atop my desk at the office and at home for rehearsal. I stand behind it for hours, going through my argument, preparing for any kind of court—hot, cold, and lukewarm.
I also prepare flash cards—my appellate “burn stack”—containing questions (typically around 100 of them) that I may be asked, then I flip them and try to answer out loud to ensure I have answers and can articulate them with precision. My only rule is spare no absurdity. I think of hypotheticals to stretch my argument to the limits. And I articulate the answers, out loud. I will often enlist colleagues to come up with different questions to throw at me. They almost always come up with stuff I didn’t think of, and I walk through the answers with them. It can be as casual or formal as you want, a phone or office visit or a full-blown moot court—depending on the needs of the case.
In preparing for one argument a few years ago, I thought I was ready and had covered every possible issue and question. But following my regular procedure, I had a discussion with a colleague a few days before. He came up with a question that I never thought of. We worked through the best response. And as it turned out, that was a key question posed by a judge on the panel and I responded without a hitch and rolled into the next point seamlessly.
Some may say, well, that just takes too much time and the client can’t afford it. Chief Justice Roberts (at one time known as very expensive appellate advocate Roberts) once gave the best response to this type of thinking. He said, in effect, that he was never going to stand before the Court and explain that the answer to a justice’s question was “not in the budget.” All serious appellate advocates should take the same approach.