First things first When you get the notice that the case is set for oral argument, have a mini-panic attack. After you calm down, take an hour or two and just remember the case. It most likely has been six months to a year since you submitted your opening brief. Skim the brief so you can bring the case back into your mind, and start thinking about potential high points for an oral argument. Your oral argument is set 2-3 months in advance so you do have time to let the case roll around in your brain. Plan your travel Most of my trips are from Phoenix to San Francisco. I pick a flight that works best with the time of the oral argument, and I make sure that I never have an issue with needing to hurry to and from the airport. I find a hotel that is in a good location to the Court, but also has good restaurants and coffee shops nearby (not that hard to locate in San Francisco). I plan my flight to leave the day before. I leave early in the morning even though my oral argument is not until the next day so I can have time to solely concentrate on the oral argument. My return flight is late afternoon or evening on the day of the oral argument so that I am not sitting with my suitcase at the oral argument. (Even though your oral argument is usually set at 9 a.m., you are set at the same time as everyone else. You may need to sit through 5-6 other oral arguments, and you may not get out of court until noon.) Check case cites Pull cases cited in all of the briefs. Shepardize all cases and see if there is any new precedence. Focus on the important cases, and not really on the ones that cite general principles of law or standards of care. Make a binder of the cases. I like having paper versions of the cases, and I write in the margins as I study the cases. This is very critical. One of My worst oral argument nightmare was that on my way to San Francisco, I found out that the Supreme Court of the United States overruled my best case. I tried to come up with some crazy argument to get around it, and I was just sweating bullets while the panel looked at me like I was a crazy person. As the oral argument approaches... One to two weeks before the oral argument, review the briefs again and review the trial record as well. Narrow down what you think will be the most relevant issues and questions, and put as much as you can on your laptop or tablet. (I own four IPads, including the IPad Pro, a MacBook Air, an Iphone 7 and an Apple watch. I use all of these tools for the oral argument preparation.) I try to limit the amount of paper that I bring to hard copies of the briefs and paper copies of the most important case law. Moot oral arguments 5One week before the oral argument, find out who is on your panel. Do some additional case law research to see if anyone on the panel has ruled favorably (or unfavorably) in cases with issues similar to your case. In the weeks before, have a mini-moot argument. There are several ways this can be done. One is to gather everyone at your office and argue the case. Another is to pull another lawyer aside and just tell them one of the points of your case and what is bothering you about it. Another is to take a lawyer to lunch and ask if you can run the case by them. My favorite is telling a non-lawyer about the case and hearing their reaction. My husband is great for this, and he gives great pointers on what does not make sense in what I am saying. I'm sure he is tired of it after all these years, but he is such a common sense guy. (Love you, honey.) If travel is involved The day before you travel, clear your schedule as much as you can. Try to use the day to start an indepth review of case law and think about your outline for oral argument. My outline usually is developed more from the important case law than the actually briefs. (The Judges have read the briefs, and I'm trying to emphasize points in the oral argument that will get the attention of the Court.)
If you are traveling out of state to go to an oral argument, you need to leave the day before. You can deal with any airline delays, etc. much easier the day before than a morning flight on the day of the oral argument. Even though I have the whole day, I always leave in the morning. I work every moment of my travel on the oral argument. I work at the airport and on the plane. Being out of the office, you can concentrate on just this case. Try not to work on other cases until your oral argument is over the next day. It helps to focus just on this case. My biggest revelations for the oral argument generally come to me on this date. Continue working at the hotel. I am a Starwood Preferred member, and at those hotels, I generally get early check-in. Sometime during the day, have a great meal. I will generally be working while eating, but having a great meal softens the blow. Also, take a walk! After hours and hours of non-stop working, you have to clear your head. I try to take a walk during the afternoon or early evening. Try to go to bed early. I will go to bed early, but with all the stress of preparing, I may not fall asleep right away. I relax in the comfy hotel bed surrounded by briefs and my tablet. Your outline and the last minute preparation I prepare a 3-4 point oral argument. I also reskim case law, the briefs, and the record. I do a lot of talking to myself in the hotel room. I pretend that I am the Judge asking questions and then myself answering them. I play devil's advocate quite a bit. The Judges are never going to tell you what an amazing case you have. They usually will point out your worst points and then see what you have to say about them. Luckily, no one sees me doing these exercises, or they would think I was nuts. However, it is very helpful to say the words out loud and get comfortable talking about the case. The big day Wake up early. I get up at 5 a.m. even though I do not need to be at the Court until 9 a.m. I work from the time that I get up (even while I am blow drying my hair) and usually get room service breakfast to maximize my preparation time. I show up at the Court 30 minutes prior to check in. Before the Judges come in, I try to find opposing counsel and chat about where they are staying and the restaurants that they have eaten at since they arrived in town. No reason to make it heavy and talk about the case. I also look around the courtroom and just enjoy it. The 9th Circuit Court of Appeals courthouse is so beautiful. It has breathtaking frescos and stained glass and marble floors. I have never been in another courthouse that is so awe-inspiring. The argument itself I may have to wait a few oral arguments before my turn. It's over in terms of rereading briefs or case law. I generally half-listen to the oral arguments and the types of issues the Judges may be focused on (even if it has nothing to do with my issues). Listening to the other cases can give you an idea on what Judges are more chatty or have tough quesitons. I'll also reskim my outline that I have created for the oral argument which will only include 3-4 big points.
Anyone who has done an oral argument will tell you the same things. The attorney has very little control on how the argument progresses. As I said previously, my outline is really only 3-4 points. I'm lucky if I get through 2 points. The judges know what they want to ask about, and as that attorney, you can only go with it. Sometimes, the judges will hammer something about a case or some area of the record. If it feels like they are really bothered by that point and you cannot get anywhere in your argument, ask if you can do a supplemental brief or case citation after the oral argument. The after.... I generally walk out with the opposing counsel and commiserate a bit about the oral argument and congratulate him or her on a job well done. As stated previously, I try to book at a hotel where I can get late check-out. I might lay down for a bit, check emails, check into the office, and get back to reality on my other duties. I try to get a flight that is late afternoon or evening. That gives me a few hours for a nice lunch and a walk. The thing that I don't do...think about the case anymore. (Or at least, I try not to.). You can have those really bad oral arguments where it feels like the Judges hate your case and are having a love fest with the opposing counsel. Even if that is the case, you cannot re-live it. It will just stress you out unnecessarily. I pack all the oral argument materials in my suitcase so I cannot look at it on the way home. Relax on the plane ride home. You will have a ton of stuff to do at the office tomorrow.