I was a bit nervous during my oral argument, perhaps because it was just the second argument I’ve ever done, and perhaps because it was just because having to argue a real case in front of real judges is pretty daunting.
Fortunately, I remembered that a judge once told me it’s good to be a bit nervous at oral argument, or at least better than to come across as glib and a know-it-all. Maybe some might disagree on this — but at least it kept me from being nervous about being nervous, in addition to just being nervous.
dcperson says:
I agree that glib and know-it-all is very annoying. If the case was so easy, the parties wouldn’t be before the court. Nerves are normal.
December 3, 2009, 1:34 pmDude says:
I listened to your first oral argument. It was good. You didn’t sound like a law professor, though. Lawrence Lessig sounded like a law professor during his Eldridge oral argument. And he lost!
December 3, 2009, 1:43 pmSteve says:
It’s normal to be nervous. I find my nervousness always dissipates once a couple other cases go before mine, and I hear those lawyers stammering and sounding like idiots. I realize at that point that I’m better prepared than I think!
December 3, 2009, 1:51 pmThat Guy says:
Do you have a cure for being nervous about not being nervous about being nervous?
December 3, 2009, 1:52 pmTNeloms says:
I think any issues with the delivery of your argument were more than offset by how poor your opponent’s actual arguments were. (And your arguments seemed pretty convincing.)
December 3, 2009, 2:00 pmCrazyTrain says:
I remembered that a judge once told me it’s good to be a bit nervous at oral argument, or at least better than to come across as glib and a know-it-all.
Especially true given who you are and where you were. I think, if anything, the Nebraska Supreme Court would have expected you to be glib and know-it-all as you are a fancy-pants First Amendment expert from Los Angeles. That you were nervous probably flattered them to some degree.
December 3, 2009, 2:05 pmOrin Kerr says:
As CrazyTrain suggests, much better nervous than pompous.
December 3, 2009, 2:13 pmCrazyTrain says:
“The speech in this case is conduct, not speech.”* That’s usually the last gasp argument of a party going down on a first amendment issue. Once you hear a party making it, I think it’s pretty clear that party knows it’s going to lose.
*Opposing counsel (who I thought did a fair job, given that he had to defend a pretty much indefensible position) says this towards the end of his argument.
December 3, 2009, 2:14 pmShelby says:
Eugene, if it’s any consolation, my second substantive oral argument was much worse than yours. The judge surprised me by indicating she was inclined opposite to what I expected, and I had not adequately planned for that possibility. I wish I’d only stammered a bit!
December 3, 2009, 2:24 pmAJK says:
I’d just like to say that I thought you acquitted yourself well: it was obvious that you were nervous, but you were clearly well-prepared and you stayed focused and presented your arguments very cleanly. So in conclusion, great work, and I hope you can celebrate a well-deserved win in short order.
December 3, 2009, 2:38 pmTony says:
Where is everyone listening to this oral argument?
December 3, 2009, 2:47 pmJohnF says:
I thought your argument went very well.
I was always aware of two kinds of nervousness at oral argument. The first is the fear that you are not well prepared or that something you didn’t think about will come up. That is something that you can always get rid of to a great extent by careful preparation. The second kind is nervousness about the gravity of the situation, the authority of the court, etc. This never quite goes away as you get ready for argument, but I found that once argument started, it pretty much does.
There is a third thing which is not nervousness per se, but is easy to confuse with it, and that is a demeanor that is thoughtful and very careful. Such people (like lawprofs!) are very careful in the words they use, so much so that it can lead to speech patterns that sometimes sound like uncertainty. This goes away with practice, I think, which is why a prof who is very smooth and glib in his classroom, which he has been doing for a long time, can be tongue-tied in a different and unfamiliar setting, like oral argument.
December 3, 2009, 2:47 pmSteve says:
What that judge told Eugene was probably reassuring, but it pretty much presents a false choice. You can be an effective and clear communicator without coming across as a know-it-all.
December 3, 2009, 2:48 pmAeon J. Skoble says:
IANAL, but I think you came off very well.
December 3, 2009, 2:50 pmJohn R. Mayne says:
It seemed a little People magazine to comment on it on the main post, but you’ve invited the unwashed masses to weigh in, so here I am.
A few thoughts from someone who has done little appellate work and lots of courtroom/law and motion work (which is to say, underqualified to evaluate EV):
1. I agree with everyone that nervous is way better than overbearing and pompous. I therefore thought unwise your argument that, “I’m trying to reach you Nebraska rubes with simple words. God, I wish I were back in Hollywood with famous celebrities.” **
2. The nerves were still clearly in evidence throughout your arguments, but you only sounded super-nervous at the start of each of your arguments.
3. There were several points where you were rolling, or had prepared answers to expected questions. It flowed nicely.
4. I liked that you linked it. I wanted to see EV in action!
5. Opposing counsel was reading in his prepared statement. That hurt a little to watch, even though he had good voice and inflection. CrazyTrain’s comment 8 points out a part that I found to be good for you, too – I did a double-take when I heard that argument.
6. Vegas odds (look between the Super Bowl futures and the NBA game odds) have you as a 10-1 favorite to win this. The justices’ questions to opposing counsel were some of your talking points. That’s always charming.
–JRM
**Quote slightly edited for readability and grammar. The original quote was, “Thank you.”
December 3, 2009, 2:52 pmys says:
I am not a lawyer and don’t do oral arguments, but I do speak and occasionally perform in front of an audience. I find, to my surprise, that I am both more relaxed and animated in public than when I practice alone. I wonder if this effect may take place in court as well.
December 3, 2009, 2:54 pmKirk Parker says:
Ah, Professor Slippery Slope himself is saved at the last minute from an infinite regress. Whew!!! :-)
December 3, 2009, 3:31 pmgeokstr says:
After a long lifetime of fear of public speaking, I started taking acting classes to try to overcome it. With several years of lessons under my belt, I find I still feel terrified, but I can hide it so well that not even my professional instructors can tell.
That’s not exactly the same thing as being at ease speaking in front of a group, I suppose. Or maybe it’s not that much different, either.
Good luck with your arguments.
By the way, in my acting school, the best one in Atlanta, we get lots of lawyers, athletes, corporate managers and others looking to help deal with the same issue in their chosen careers.
December 3, 2009, 3:36 pmDave N says:
It is in his previous post on this topic, here.
I have always enjoyed oral arguments (20-30 in the Ninth Circuit, 3-4 in my state Supreme Court). When I am actually arguing, I am so focused on the judges that the time passes very quickly. However, advanced jitters are normal, no matter how well prepared you are.
BTW, I agree with Steve on this. There is a difference between knowing your case and coming across as arrogant.
In one of my first oral arguments I had the opposite happen.
The Chief Justice of my state supreme court interrupted me with, “Counsel, I couldn’t agree with you more.”
He then spent the next minute agreeing with me and making my points (I was watching the clock). I figured that was a very good use of my time.
My advice to anyone doing appellate argument is to practice, practice, and then practice some more. Do at least one moot court — and recruit someone to be a real jerk as a moot court judge who will ask antagonizing questions. When the actual oral argument occurs, you will end up thinking to yourself, “That wasn’t nearly as bad as I was expecting.”
Finally, for any appellate attorney, I highly recommend Antonin Scalia and Bryn Garner’s book Making Your Case: The Art of Persuading Judges. It is invaluable.
December 3, 2009, 3:46 pmSmooth, like a Rhapsody says:
I have done briefs and talked to a lot of juries but never done an oral argument.
I would think that an extremely smart professor would do well in an oral argument setting since he is used to rapid intellectual give-and take.
If I were who I think EV is I would not be nervous about appearing before the Nebraska Supremes; the US Supremes, maybe…
And anyway, Jack McCoy makes oral arguments look pretty easy, and I bet that EV is a lot smarter than McCoy.
December 3, 2009, 3:53 pmjnheath says:
I got a moot-court lesson on the value of humility, or the appearance of it, when the panel commented very favorably on how closely I focused on their questions. They did not know my hearing is damaged, thus I leaned forward, watched their faces, and tilted my better ear toward them.
December 3, 2009, 3:56 pmDale Gribble says:
The Supremes really gave the lawyer for the Attorney General’s office a beat down yesterday. He appeared to realize he was arguing a dog and was just doing his job.
December 3, 2009, 4:05 pmgeorge weiss says:
you think you are nervous now-try some jury trial advocacy!
December 3, 2009, 4:13 pmJon Rowe says:
I find that xanax helps me out during these kinds of moments.
December 3, 2009, 4:22 pmbpbatista says:
Oral arguments are the most fun that lawyers are allowed to have with their clothes on.
December 3, 2009, 4:42 pmPubliusFL says:
And possibly even without.
December 3, 2009, 4:58 pmPaul McKaskle says:
I suspect being a bit nervous is good. However, the number of times an oral argument (good or bad) has changed the result that a court of last resort had tentatively reached before the hearing are vanishingly small. (It might happen more often at intermediate appellate courts or trial courts because they have no discretion to hear a case. But a court of last resort generally takes a case only when it has a pretty good idea of what the result should be.)
I was told by a long serving research attorney at the California Supreme Court that oral argument changed the result there only once in a 40 years–and that was because a lawyer convinced the court during oral argument that it had mis-percieved the underlying facts.
Perhaps “volokh-ers” who have clerked for SCOTUS have a different view on how much that court changes its result as a result of oral argument. My bet would be that it is a pretty rare event. In reality all important points have already been briefed so oral argument isn’t likely to add all that much which is new.
December 3, 2009, 5:07 pmdrunkdriver says:
Presentation matters more to the lawyers than it does to everyone else. You did fine; it doesn’t matter if you are nervous, as long as you are prepared, convey your thoughts, and you act like yourself, all of which you did.
Also you are going to win the case, which won’t suck.
On the usefulness of oral argument, I do think it’s useful, having done it many times, even if it’s only rarely a result-changer. Very often the judges haven’t had a chance to understand your case in-depth; many of them won’t have practiced in your area or encountered your issue; and you can often influence the perspective they bring to the case. Even if you ultimately aren’t able to change the result through the argument, and thus it won’t matter to your client, there is some measure of professional accomplishment in getting that little bit out of a case.
There are a lot of things lawyers do that rarely change the result of a case, but we do them because they’re good practice. If we do all these other things, it makes no sense to blow your last chance to speak directly to the decisionmakers.
December 3, 2009, 5:48 pmAnderson says:
The Miss. supreme court has gone to deciding most cases on the briefs, with only occasional oral argument. So presumably, the cases where they grant it are those where *they* think it’ll make a difference.
Going to an en banc oral argument in two weeks — curious how that will go. I suspect it will bear out, by converse illustration, the proverb that well-briefed cases don’t need oral argument.
December 3, 2009, 6:06 pmSara says:
FWIW – Starting of with the formal address to the court members followed by ‘may it please, etc.’ and introducing myself and the party I represent, helps me settle my nerves.
December 3, 2009, 6:27 pmTim says:
Great job, Professor.
If his written argument is as foolish as his oral one, you have a slam dunk case.
December 3, 2009, 6:31 pmgeorge weiss says:
justice scalia (who wrote a book on appellate advocacy of all types) was once asked whether oral argument had ever changed his mind. he said no-but sometimes it has made up his mind in the first place.
i think that’s pretty true across the board. so people who say oral argument won’t change the judge’s mind may be mostly right-but also missing an important point.
December 3, 2009, 6:43 pmerp says:
Eugene, I watched the video with the sound off and you came across very well. You were animated and engaged and didn’t look at all nervous or arrogant. Well done.
Of course, you did look very young, especially in front of all those gray beards, but without any effort on your part, that problem will resolve itself.
December 3, 2009, 6:56 pmBZ says:
Having a few (ok, a lot more than a few) OAs under my belt, I think I can say that nervousness is normal. Recently had a moot with a former SG of the U.S., and he was certainly nervous both at the moot (the first of four he would have) and at the actual SCotUS OA. Was true at a different SCotUS argument, when Larry Tribe had a case following me; he appeared nervous too. I was nervous, especially since I had unwittingly downed a can of the caffeinated version of Barq’s root beer the night before. My opponent in that case, on the other hand, told me he “slept like a baby” the night before; he lost on a unanimous decision.
I would differ, however, on the “nervous” vs “pompous” characterization. I often counsel those I am mentoring in this process that you are not giving a presentation so much as having a conversation with the Justices/judges. The best OA presenters are neither pompous, nor smug; they are simply carrying on a conversation as one who is informed with those who are less informed but more influential.
In other words, you can be nervous or not, but in the context of how you can best say it, the best OAs are discussions.
And as to whether OA changes or makes up minds, it certainly can. As in one of my more memorable OAs, January 2, 2008, at 9AM, when a judge from the highest court designated himself onto my intermediate court panel, and interrupted early on to say: “I have a problem with the state of the law.” He proceeded to set out what he wanted the law to be, and that was pretty much it for me, my opponent, and the rest of the panel. Didn’t really matter what any of us were thinking. I’d say that was an influential OA.
December 3, 2009, 7:11 pmMike Crosby says:
but you’ve invited the unwashed masses to weigh in, so here I am.
Hey Eugene, you want to hear from a butt-cracking appliance mechanic:-?
I liked how you were clear in the law. That you thought on your feet. You were cogent to the justices, not only explaining the law, but reasoning with them how the law would apply in specific situations. IE, if someone was in the room but behind the curtain.
I’m in Toastmasters and gave a speech today. One of the things Toastmasters tries to drum out of people are the “uhs, you knows, etc”.
If there is one criticism, it would be to remove the “uhs”. Good job.
December 3, 2009, 7:36 pmgasman says:
Curious field, academic law.
December 3, 2009, 8:17 pmThere is no such thing as a tenured professor of surgery who would find himself in the position of performing merely his second operation. In medicine, academics always perform their trade quite extensively before they get the title of professor.
Curious passerby says:
I once was told that if you are ever intimidated when speaking to someone, just imagine them naked.
December 3, 2009, 9:29 pmjccamp says:
I think a little nervousness in court is good. It keeps one edgy, on point and focused. If your voice cracks just a little at the beginning of an argument/sentence/response/answer, so what? Stop, take a deep breath, and proceed. It demonstrates your seriousness, your attention to what it is you’re doing. This isn’t a job, it’s an adventure.
Really.
December 3, 2009, 9:50 pmBiolawguy says:
“There is no such thing as a tenured professor of surgery who would find himself in the position of performing merely his second operation.”
True, but there are indeed prominent medical school professors who have not practiced medicine – they’re focus mainly on research, etc.
If Eugene only teaches and publishes on legal doctrine and theoretical matters, then his situation is not unreasonable. OTOH if he teaches “practice” oriented courses like Appellate Advocacy or some such then I agree with you 100%.
December 3, 2009, 11:01 pmFirst-year associate says:
Wow… the arguments of the state were terrible! They fly in the face of Constitutional law.
You were rather nervous, to the point that I found it somewhat distracting. But I found myself agreeing with 100% of what you said. I agreed with nothing that the opposing counsel said. I think they will rule in your favor.
December 3, 2009, 11:34 pmRicardo says:
A little nervousness in public speaking is a good thing. It gives you the surge of adrenaline (and other hormones beyond my armchair knowledge) you need to stay focused and “get in the zone” for a good performance. Too much nervousness is bad and too little nervousness is also bad because you won’t have the same focus and energy. Nearly every public speaker I’ve ever talked to about this confirms they always feel slightly nervous before beginning but seize on that nervousness for the adrenaline. In other high intensity situations or occupations, I also hear that people give their best performances when they start with just the right amount of nervousness: not too much and not too little.
December 3, 2009, 11:40 pmCurt Fischer says:
You might be surprised to learn that in many medical schools, the professors who teach biochemistry, physiology, and possibly other subjects might not even have an MD! And yet they are still given the title of professor, and they still teach medical students.
December 4, 2009, 3:10 ampublic_defender says:
Of course, nervousness is better than arrogance. Nervousness is a sign of inexperience or discomfort. Arrogance is a character flaw. Nervousness can turn an excellent argument into a good argument, but good is still good. And while judges are impressed by smooth, quality performance, substance is still king. Emphatically delivered drivel is still drivel.
One of my biggest early mistakes at oral arguments was not “yes” or “no” the first word out of my mouth when a question called for a yes/no answer. So I started to write “YES/NO” in giant letters at the top of every page of notes.
On the usefulness of oral argument, I do think it’s useful, having done it many times, even if it’s only rarely a result-changer. Very often the judges haven’t had a chance to understand your case in-depth; many of them won’t have practiced in your area or encountered your issue; and you can often influence the perspective they bring to the case. Even if you ultimately aren’t able to change the result through the argument, and thus it won’t matter to your client, there is some measure of professional accomplishment in getting that little bit out of a case.
In state court, many judges don’t seriously look at the case until just before argument. And they generally vote immediately after argument. That means that oral argument will often frame the issues. Of course, oral argument won’t save a sure loser, but in cases that are close, it can make a big difference.
In one of my first oral arguments I had the opposite happen.
The Chief Justice of my state supreme court interrupted me with, “Counsel, I couldn’t agree with you more.”
The best sign I’ve had at oral argument that I would win was in my state supreme court. I represented the appellant. At the end of the prosecutor’s presentation, the Chief Justice apologized to the prosecutor for the difficult position the court of appeals forced her to defend.
The second best was in a federal appeals court in a habeas action. My client had lost all through state court and in the federal district court. One of the questions to me was something like, “Counsel, how did you ever lose this case?” I couldn’t say the real answer–the state courts didn’t take the case seriously and the district court judge used to be the head prosecutor in the county where the case came from (although he had left that job by the time my client was prosecuted).
Back to the arrogance issue. I once spent part of my main argument dismissing the idea that a certain statute was difficult for trial judges to navigate. When I sat down, I realized that I had made a mistake, which I promptly admitted at the beginning of my rebuttal. Without dropping a beat, and fortunately with a smile, one of the judges retorted, “Counsel, I thought you said this was easy.”
December 4, 2009, 7:45 amAnne Marie says:
I have not argued in front of a court of appeals yet, but I have argued in front of a federal court, which to me is quite a step up from state court and a bit daunting.
When I’m in court, I don’t like to think of it as “nervousness” but as going “belly up.” As the last poster stated, arrogance would rankle, but nervousness might appear as inexperience.
But going belly up shows the judge that he is the boss and that I am just the messenger trying to relay my client’s case and the supporting law. Being emphatic helps show that I really care about the case and that there is good reason for me to be there other than just wasting the court’s time.
December 4, 2009, 8:54 amdcperson says:
this needs to be a message given to every oral advocate. for pete’s sake, start the answer with a yes/no if the question requires it. you can dance all around the topic afterward and distinguish or explain to your heart’s content, but you simply seem nonresponsive if you never actually give a yes/no answer to a yes/no question. and the answer frequently turns into a directionless pile of confusion.
December 4, 2009, 10:44 amdisconnect says:
You’ve never given a presentation at an SAE meeting, I see. You don’t want to imagine that.
December 4, 2009, 12:29 pmAaron Denney says:
That’s a sad indictment of the state and local justice system, compounded by not feeling as if you could say so.
December 4, 2009, 12:41 pmDave N says:
I have no doubt about EV being smarter. My quibble is that appellate advocacy and trial advocacy are two different skill sets. Having done major work in both settings, appellate advocacy is most effective with cool command of the law and the facts to persuade judges. Trial practice, on the other hand, involves persuading lay people.
Some appellate attorneys should never go near a trial courtroom. Likewise, some trial attorneys should leave the appellate advocacy for others.
December 4, 2009, 1:22 pmScotty says:
As would be expected of anybody giving their second oral argument, you were pretty nervous. I have tried alot cases and argued a bunch in front of judges. I find that practice, practice, and a little more practice will really help you be more fluid and natural. Also, there is no substitute for experience.
A few people are naturals when arguing in front of judges, the rest of us just work hard at it.
Keep arguing!
December 4, 2009, 3:02 pmnicoley says:
Congrats Prof. Volokh!
December 4, 2009, 9:40 pmDave Hardy says:
A load of practice can ease the nerves. Before I did oral argument in a death penalty appeal, I “mooted myself” forty hours, for forty minutes of argument. A prof. of speech who watched said it was fascinating to see the justices won over, one or two at a time.
December 4, 2009, 9:47 pmOrin Kerr says:
Dave N,
Agreed.
December 4, 2009, 11:52 pmDavid Nieporent says:
I think he did a good job too, but shouldn’t “Congrats” wait for the result?
December 5, 2009, 7:09 am