Appellate Advocacy at Its Highest Level

Yesterday afternoon, I walked from my office to the Century Plaza hotel to attend a panel discussion at the American Bar Association mid-year meeting. The panel was held in a smallish conference room, and the chairs were only three-quarters full. That was surprising, because the panelists were two of the most accomplished appellate attorneys currently active in American courtrooms: Professor Erwin Chemerinsky and Dean/former Judge/former Solicitor General/former president-prosecutor Kenneth Starr.

Although the two legal giants were amiable on the panel, they were practically stereotypes of liberal and conservative law professors. Starr's posture in his seat was ramrod-straight, yet seemingly relaxed. He has a perfectly-modulated (if a bit dull) voice that purrs like a well-tuned luxury car. When Chemerinsky spoke, Starr industriously jotted down notes. Chemerinsky, on the other hand, stared down at the table while Starr pontificated. He fidgeted and twisted his arms as he spoke in a slightly nasally voice. He was, in other words, a law nerd.

The two said nothing about the most notorious controversies of their respective careers: for Chemerinsky, the recent hiring, firing, and rehiring of him as Dean of the University of Irvine's law school (I still find it hard to believe that after hiring him, the powers that be would suddenly realize, "Oh! We forgot! Erwin Chemerinsky is an outspoken liberal! And this is an Orange County school!"); and Starr's investigation of the Whitewater and Lewinsky, er, affairs. Chemerisky did talk about the Gore campaign summoning him down to Florida in November 2000 to argue that the butterfly ballot was unconstitutional; but only to relate an anecdote about pulling his 17-year-old son out of high school to attend the arguments with him.

The panelists were ostensibly there to give tips for oral argument before the U.S. Supreme Court and other appellate courts. But the pointers are pretty much the same no matter who's giving them. Prepare. Know the record. Know the judges. Don't question the judges. Keep in mind three major points, and work them into the answers you give to the judges' questions.

So the highlights of the panel were actually the attorneys' reminisces of their own arguments. Chemerinsky described an argument before the 4th Circuit Court of Appeals in which the judges were beating him up with their questioning. He didn't know at the time that the judges had a custom of shaking the hands of attorneys after the arguments. So when the judges emerged from behind the bench and headed toward him, he thought they were going to beat him up for real. He also discussed a judge (who he declined to name) who not only tore into him during arguments, but plainly did not like him personally. He and the judge were both at a conference. They found themselves standing next to each other in the men's room. As the two men went about their business, the judge criticized Chemerinsky's legal views. Chemerinsky had an urge, he confessed, to "pee on his leg." (He didn't.)