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Supreme Court and Appellate Advocacy by David C. Frederick (Thomson West, 383 pages, $49) All of us would like to make a perfect argument before an appellate court. As our imagination runs away with us, we see ourselves making this perfect argument before the Supreme Court of the United States. We are at the lectern, addressing the chief justice. What do we say? Do we call him by name or do we just refer to him as the Chief? How do we deal with questions? Set-piece oratory is a thing of the past. The lawyer’s skill in answering questions is what is required. Do we respond with a blunt answer that stuns all nine justices with its assertiveness or do we intimidate them with the power of our serenity? David C. Frederick’s new book, Supreme Court and Appellate Advocacy, tells us what to do. He himself stood at the Supreme Court lectern some 12 times (he was with the Office of the Solicitor General for five years) so he knows what he is talking about. His book has the usual recommendations, which can be summarized in a few words — prepare, prepare, and then prepare some more and, of course, know the record and the law better than anyone else. What I have always wanted is the book that has not been written, the book that tells me how to make a good appellate argument with little preparation and only superficial knowledge of the record. This is not Frederick’s game. He is thorough. Not only does he discuss the obvious considerations, but also he goes further and brings in things that none of the other appellate advice books contain. For instance, he examines the tricks the mind plays on us when we have a demanding court appearance. We become two people. Person A is rational. He wants us to bring to court all the papers that are necessary for a good presentation. Person B is irrational. He does not want us to go to court because if we do, we may make a fool of ourselves. Person B makes us forget to bring to court the papers we need. Person B hopes that when we are in court and discover we left the important papers on our office desk, we will flee from the courtroom, thus avoiding the embarrassment that will follow our bad performance. Despite Person B’s treachery we go ahead with the argument. It is well-received. Nevertheless, we are angry with ourselves. We resolve that everything in the office must be put in order. No clutter. Person B thrives on clutter. We resolve to put a list on our briefcase identifying what goes to court, a checklist like the pilot uses before takeoff and landing. Here is Frederick’s checklist: • Briefs • Binder of case • Podium binder • Federal Rules (Criminal, Civil, etc.) • Pad of paper • Pens • Post-its • Highlighter • Pocket Constitution • Aspirin • Extra contact lenses, solution, and case • Throat lozenges Writes Frederick: “The briefs, podium binder, and case binder are obviously a must, as are the general procedural rules: questions about them arise at the most unexpected moments. (Indeed, in a surprising number of cases, a reference in the courtroom to the rules of procedure has proved to be helpful.) Sometimes the needs of a case will dictate taking something extra — a volume of the Code of Federal Regulations, the pertinent volume of the United States Code, or a frequently cited book. The checklist lets the advocate worry about what to say rather than whether she has omitted bringing something important to court.” Frederick has written a chapter entitled “Visualization.” He recommends that days before the argument, we find a quiet place and sit with eyes closed. We visualize the entrance into the courtroom, what we will be wearing, what we will be carrying, even whom we might see (such as family or friends) in the audience while making our way to the counsel table. He continues: “The advocate then visualizes sitting quietly in the courtroom just before court is announced, standing as the members of the court enter, listening attentively, as the presiding judge announces the orders, approaching the lectern, and addressing the court. If the advocate is tall, she might visualize making an appropriate adjustment to the lectern. In the Supreme Court, the lectern is manually adjusted and requires a turn of the handle toward the body in a counter-clockwise motion to raise the lectern. In some courts of appeals, such as the D.C. Circuit, the lectern raises and lowers electronically with the push of a button. (Nothing tips off the court faster that the advocate is inexperienced than fumbling with the lectern.) The next part of the visualization exercise is the most important — and more difficult. The advocate visualizes the opening, ‘May it please the court,’ with eye contact starting with the presiding judge and then sweeping across to the other members of the court. Then the advocate visualizes the beginning of the opening. Because in the vast majority of cases the advocate will be interrupted with questions, she should try to visualize who will interrupt what point in the opening and with what questions.” I have had an interest in the use of analogies to assist the Court to see the case my way. Frederick has a chapter on analogy. He includes transcripts from actual arguments to show how the experienced lawyers plan and introduce a colorful analogy. Should a lawyer use an analogy that occurs to him for the first time when he is on his feet? Frederick tells me this would be unwise. An analogy can be turned against you or fall flat unless it is carefully thought out ahead of time. A clever analogy I recall was delivered by a judge rather than a lawyer. Judge Oliver Gasch was listening patiently to a lawyer trying to talk his way out of a controlling precedent. After he had gone on for 10 minutes longer than he should have, Judge Gasch said, “I think I finally get your point. Two plus two is five.” Frederick tells us how to wind down the argument. He says there are lawyers who sit down with bravado, leaving 10 minutes on the clock. There are others who are sensitive to the signals the court gives that say we have heard enough from you. As with any art, knowing how to close is a combination of experience and intuition. Experience and intuition, they are whispering to me right now. So if the Court has no more questions . . . Jacob A. Stein is a founding partner of Stein, Mitchell & Mezines. He is past president of the D.C. Bar and of the Bar Association of the District of Columbia. His books include Closing Argument: The Art and the Law.

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