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Welcome to Law School 3L: Beyond the Hypothetical

Published: Apr 01, 2009

 Law       
USC Law School 3L Annika K. Martin ruminates on life as a JD-to-be. This is the 13th in a series.

After all our splashing about in the kiddie pool of theoretical classroom exercises, it is sometimes nice to dive into the real world of lawyering and test our skills under the burden of responsibility. This past summer I was fortunate to work for a Constitutional law professor on litigation he was involved in, researching and even writing briefs in actual, influential appellate-level actions. This fall I got to see some of that work through to its conclusion: oral argument before the United States Court of Appeals for the Seventh Circuit.

I could not do any of the actual arguing, of course, since I am not admitted to the bar, but I did help out with the development and rehearsal of the oral argument that was to be given. Because appellate court justices interject with questions during oral arguments, the course of appellate argument is less predictable than lower court litigation, where each side is given time to plead its case uninterrupted. Preparations for appellate argument therefore cast a wider net than the focused strategic planning of trial-level arguments.

Much of the work in readying an appellate argument involves predicting what the justices will focus on, question, challenge and seek additional information about. It helps to know your audience: how have the judges ruled in similar prior cases? At the appellate level, cases are heard before a three-judge panel, although at what point one finds out which particular judges will hear a case differs among the Circuits. Our case was before the Seventh Circuit, which meant that we would not find out which judges we were arguing before until the morning of the actual argument. Even so, we went through past comparable cases to get an idea of which judges would be resistant and which might be more receptive to our argument.

Our planned argument highlighted the strongest points made in our brief, which had been filed early in the summer, and some counter-arguments to points raised in the appellants' reply brief. The most important work, though, was identifying the weakest parts of our argument and brainstorming the best ways to handle them and quickly steer attention back toward the key points we wanted to get across during our time at the lectern. The day before appearing before the Court, my boss did a dry run of the argument before two of his colleagues and me. As he began his planned argument, we three interjected, as the justices would, probing the weak spots in the argument, questioning his supporting case law, offering counterarguments. That evening, on the flight from Los Angeles to Chicago, he and I worked through it all again.

By 9:00 the next morning, the names of the three justices hearing our case had been posted: one hard sell, one ally and one uncertainty. Arguments started at 10:00, with two cases on the docket before ours. Things moved quickly; each side had only 15 minutes to argue, unless dragged into overtime by the judges' persistent questioning. Our turn came. The appellants argued and I, having been fully involved in the case since May, was 100 percent engaged, leaning forward in my seat, counterpoints racing through my mind. Sometimes one of the judges would verbalize the arguments in my head, challenging the appellants' lawyer, and I would feel a silent surge of pride. My boss took the lectern and began to argue. The judges didn't challenge him with anything we had not already predicted and prepared for. The hard sell was stonily condescending; the ally threw us softballs; the uncertainty asked a question that was impossible to understand in its own right, let alone use as a guide to his eventual decision. I was on the edge of my seat, finding it difficult not to jump up and run behind the lectern myself to try my hand at it all.

And then, all too soon, it was over. Hours of research, thousands of kilowatt hours of brainpower, reams of paper, a few ulcers here and there, all distilled down to 15 minutes. Fifteen interrupted minutes. Fifteen minutes of trying to hold our course in the face of buffeting challenges from behind the bench and across the well. Fifteen minutes that made me itch to leave the hypotheticals of law school behind.

Annika K Martin is a third-year law student at the University of Southern California Law School in Los Angeles, CA. She earned her undergraduate degree from Northwestern University. She likes Swedish furniture, German cars, French films and Indian food.

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