iPad and Oral Advocacy

Ready To Argue. Originally uploaded by Dineen.

This week I had oral argument before Florida’s Fifth District Court of Appeal in Daytona, and I decided to travel light. In the past when preparing for oral argument, I would, in the course of following my own advice, put together a notebook (or two!) with marked-up copies of the cases and the most important record excerpts. Not only would I use that book to prepare, but I would carry it with me like a security blanket, as a back up in case we needed to quote from a case or from something in the record.

But this time, I had my iPad. I have come to be convinced that an iPad loaded with the GoodReader App is one of the best tools for lawyers to come around in many years. Synced with Dropbox, I have in a neat little electronic package all of the research I’ve done since I’ve purchased my iPad at my fingertips. GoodReader allows me read and annotate case law like a dream — I get all of my nice neat red underlines and yellow highlights and typed notations saved on a .pdf of the case. If I want to send the case to a colleague, I can do so with or without my annotations. And because it’s all electronic, it’s easily searchable, and I can put my hands on a library of marked up cases so much more easily than when I was trying to maintain paper research files. I can search file names through GoodReader, or search the substance of the files using either my Mac’s or my Windows box’s onboard search function.

Pre-iPad, I would have schlepped the notebook or two with me to Daytona, trying to juggle all of that paper as I reviewed and prepared and even as I approached the podium — and likely not looked at the book once I was at the podium. But this week, I had with me at the podium the briefs, my one sheet of argument notes, and my iPad, with the 6 or 7 most likely items I might want to refer to open and easily tabbed between. The screen capture to the right is a recreation/approximation of how I was ready to go for argument.

Afterward, I joked to my friends: “Instead of looking like a pack mule and not ever looking at any of it, I looked sleek and techno-savvy and never looked at it.” If I am going to have a security blanket, it is so very much easier for it to be a simple, thin electronic device rather than a huge notebook. I am sure the trees are thankful, too. And kudos to the Fifth District Court of Appeal for allowing me to carry in my electronic security blanket.

Update: Per Curiam Affirmed. For Appellee, that’s a win!

An Ode to First Monday

I would be remiss if I let today get by without noting that it’s the First Monday in October — which appellate geeks all know is the start of the term for the United States Supreme Court. Turns out one New Jersey resident is well aware of the significance of the day. Graham Blackman-Harris has been to nearly every First Monday for the past 20 years.

What Blackman-Harris told the Washington Post is true:

“Every American should see the Supreme Court in action,” he said. “Anyone going to the court will see we have a magnificent array of talent on that court.”

Every citizen should get thee to the Court at least once in a lifetime. It’s really awe inspiring to see argument in action.

The Court had an interesting first day including this curious order [pdf]:

Because the Court lacks a quorum, 28 U.S.C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.

It turns out that this is what happens when you sue Supreme Court justices personally — they recuse themselves and the litigant is guaranteed an affirmance. The Volokh Conspiracy commenters have a line on the backstory. Lyle Denniston has a good summary of today’s argument over at SCOTUSBLOG.

Finally, for a rundown on the cases the Court will be considering this Term, the New York Times’ article hits the highlights. However, I like Wired’s take even more, because it points out the intellectual property cases on deck, including:
Golan v. Holder, October 5, 2011, which will decide if Congress can recapture, on behalf of copyright owners, works that are in the public domain.
Mayo Collaborative Services v. Prometheus Laboratories, Inc., December 7, 2011, which concerns the patentability of observations.
ASCAP v. United States, (date TBD) which will decide whether a download is a public performance under the Copyright Act.

Grab the popcorn, folks. It’s shaping up to be an interesting term.

You’ve Been Granted Oral Argument — Now What?

On a lawyer listserv to which I belong, an attorney up in Pennsylvania posed the loaded question: I’ve been granted oral argument. Now what? Unfortunately, this is something that isn’t really covered by the Florida Rules of Appellate Procedure, which only discuss how to request oral argument. See Rule 9.320. Similarly, the Federal Rules of Appellate Procedure have a lot to say about when one will or won’t be granted oral argument, but not much about what to do when you get there. See FRAP 34. While the rules don’t say much about how to prepare for and handle an oral argument, here are the universal tips that I gave him:

  1. Re-read both side’s briefs, and be sure you know your record cites cold.
  2. Update all of the research in both briefs to ensure nothing has been overturned, or if there is anything else new out there. If your rules allow, consider filing a notice of supplemental authority, if relevant (and note that most courts allow this only for cases that are truly new since briefing, not that case from 1986 you overlooked before). Do not wait until the last minute to do this. It’s a lot more welcome/useful a week before oral argument rather than the morning of oral argument.
  3. Get a sense for the judges on your panel, as soon as that information is available: see if they were on the panel for any cases cited in the briefs, or on any other cases that deal with your issues. If a particular judge has a history of writing on a particular issue relevant to yours, that’s good to know!
  4. Prepare an argument outline, and be ready to not follow any of it. If the court has asked for argument, the judges likely have questions for you. You should have a good sense of what those questions will be and what your answer is to them. If possible, engage a colleague or two to pepper you with questions and conduct a moot court argument.
  5. If you are appellant and rules allow, be sure to reserve some time for rebuttal.
  6. Don’t overstay your welcome. Know what the court’s rules are for time for argument (and logistically, how it signals attorneys on time). If you’re on a red light, finish your sentence quickly and stop. As you stop, say something like “and if the court has any more questions, I would be glad to answer them.”
  7. If you do get stumped on a question (particularly the “where in the record…?” type), ask the court for permission to follow up with a letter or other supplemental filing (check your rules on this ahead of time) that provides the cite you couldn’t come up with in the heat of the moment. Then do so, in a very straight forward manner without going deep into argument, and do it quick (like within 24 hours), while everything is still fresh in the court’s mind.

In my view, it is hard to overprepare for appellate oral argument, even though you end up using a small fraction of what you have done to prepare. The time is well spent, though, if you have really thought through the issues in a way that allows you to answer even the most obscure of questions from the panel with ease.