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The Thrilling experience of arguing in Supreme Court

published April 24, 2006

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( 14 votes, average: 3.8 out of 5)
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Out of the 7,000 cases that are petitioned to be heard by the Supreme Court each year, only about 100 are chosen; and for many lawyers lucky enough to plead their cases before the bench, it's a once-in-a-lifetime experience they will never forget.

However, David Frederick—an attorney at Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC—has argued before the high court more than 16 times.

Frederick—who practices in the areas of Supreme Court and appellate litigation, general litigation, and internal investigation—said that standing before the Supreme Court does get a little easier with practice.

"I don't get as nervous as I used to, and I feel more in control of the process," he said. "The first time, it happens so fast that you feel like you're on a roller coaster, and you just hang on. It's still exciting, but the pace of the experience does not seem quite as fast now."

David Bederman, a professor at Emory University who has argued three cases before the Supreme Court, agreed with him.

"In my first argument, I was not as well prepared as I should have been and didn't know exactly what to expect," Bederman said. "I'd like to say my first argument was brilliant, but it wasn't."

"In my last argument, I would say what I was most proud of—and this is what I teach my students—was knowing when to shut up and sit down," he said. "I sat down after 12 minutes. I realized I had managed to cover all the points and the justices were responding well. So, instead of wasting all of our time, I sat down; and I ended up winning nine to nothing."

Because of his experience in appellate advocacy, Bederman is often the one lawyers turn to when they are seeking tried-and-true advice in the oral-argument realm.

"I'm often in the role of helping others prepare for arguments before the Supreme Court, and I enjoy this role," he said. "I find it a challenge to work with talented lawyers, not only in strategizing and briefing, but in preparing for oral arguments, as well."

Bederman often refers to himself as a "sherpa," a term used to refer to guides chosen to lead people on expeditions into the Himalayan Mountains. He enjoys assisting attorneys as they prepare for what will no doubt be one of the most nerve-racking experiences of their careers.

"Preparation for an oral argument is even more intense in an argument with the Supreme Court because you have more arguers and the stakes are higher," he said.

Frederick also lends support to fellow and future arguers in his book, Supreme Court and Appellate Advocacy. He authored the book after an intense immersion in the world of oral argument.

"I argued three Supreme Court cases and the Microsoft case in the D.C. Circuit in a six-month period; and as I was reconnecting with people and talking about my experiences, they said it was interesting and that I should write a book about how to get ready for oral argument," Frederick explained.

An interesting mixture of historical information, humorous stories, and helpful hints, Frederick's book includes everything an attorney needs to know to best plan for a Supreme Court hearing.

"The book has chapters on how to prepare, conducting moot courts, types of questions you'll get asked, how to do openings, how to do closings, the most common mistakes; and I use real cases to illustrate the points so you get a flavor for what it's like to be in the courtroom," Frederick said.

When it comes to the practical side of preparation, the old adage about how one can never be too prepared continues to hold true.

"Know your case inside out. Know the background of your case," Bederman said.

Although some people may be capable of proceeding without a script, both Bederman and Frederick prefer to have a guide to glance down at to ensure they touch on the most important issues before the pesky red light on the lectern forces them to stop.

"I like to prepare an opening that is no more than a minute or so that lays out the argument in the simplest way possible and gives a roadmap, and I like to have an outline which has the points that I have to make sometime before I sit down," Bederman said. "And that's all I want in front of me. Anything else is distracting. Most people who participate in moot court in law school take this same approach, and it's a pretty good approach."

"I like to have an outline of key points," Frederick said. "Then, I'll use that outline in moot courts, where I'll get hostile questions, and try to turn them into points I want to make."

Bederman advises attorneys to adopt a broader perspective on the cases they bring before the high court.

"Preparing for an argument before the Supreme Court is a lot like preparing for any oral argument, except it has broader consequences…. Arguers need to prepare in a more broad sense—really considering all the far-reaching consequences the case will have," he said.

"When you're arguing before the Supreme Court, the argument oftentimes is not about your case," Frederick stated. "It's about the next case and the case after that. The Supreme Court uses oral arguments to understand the parameters of the rule you are advocating. That's why the justices ask a lot of hypothetical questions…. You have to master everything in your case and spend a lot of time thinking about hypotheticals and how to address them."

However, Frederick doesn't think it's possible to ever have a completely perfect oral argument.

"I have had arguments in which I was asked 90 questions in 30 minutes. It's hard to develop a coherent argument in that environment, even when you think you have a good answer to every question," he said. "I think the nature of this sort of experience is to feel like there is always something you could have done better; and if I ever get to the point where I think I've done a perfect oral argument, it will be time to retire, because I'm not being self-critical enough."

published April 24, 2006

( 14 votes, average: 3.8 out of 5)
What do you think about this article? Rate it using the stars above and let us know what you think in the comments below.