10 Associates Talk Nerves, Preparation and Lessons Learned from Their First Arguments

Lawyer Kim Hill provided her perspectives on her first arguments in court in this article for The Am Law Litigation Daily.

Some start with a pro bono case on a time crunch. Others take on a dispositive motion before a trial court or the stopwatch of an appellate panel. Thanks to COVID, some got their first chance via Zoom. But it’s a milestone litigation associates across the board anticipate: their first oral argument.

I spoke to 10 associates with argument experience about their first chances to address a court and what they learned from the process of preparing for argument. Here are some common themes that kept popping up.

Getting the Green Light

Samantha Oppenheim of Jones Walker: "In the bankruptcy team, the general rule is that if you draft the motion or the opposition or whatever brief that is at issue, that you have the opportunity to argue it as appropriate. That decision is generally made as a team, and the members of the team who would make the decision would be the supervising partner, the associate who would be potentially arguing the matter and then the client, as well."

Ryan Rosenblatt of Sullivan & Worcester: "We have a very lean staffing model in litigation, so it's usually just me and a partner on a case for the most part, and I'll be on the case from the start. As we're going through it, if the opportunity comes up, the partner might suggest that I take the motion. Or if it's something that I'm interested in, I've in the past requested, 'Can I argue this one?' And usually the answer is yes, depending on client sensitivities."

Christopher Fredmonski of Skadden, Arps, Slate, Meagher & Flom: "I got my first reps doing depositions and arguments, taking (pro bono) cases. Then, when you're a third-year associate and you're in depositions or you have a trial coming up, and the people ask around the room, 'Who's available to do this? Who's done this before?' I was able to raise my hand and say, 'I have.' And I, as a third-year associate, was examining witnesses at trial, traveling around the country solo, taking depositions."

Johannah Cassel-Walker of Hogan Lovells: "There is definitely something to being proactive and looking for those opportunities yourself. But as an associate in a big law firm, a lot of times you don't have visibility into all of the opportunities that you may want to pursue, and so having a senior attorney or a partner who's really in your corner and looking for those opportunities on your behalf is a really big benefit."

Grace Martinez of Bryan Cave Leighton Paisner: "It kind of happens organically. You become part of a case and the more senior you get, I think those opportunities come easier. But partners are very eager to get us associates in the courtroom, and gaining that experience—even if it's just an initial hearing or a case management conference—[it] kind of helps you break the ice and get that experience speaking in front of a judge."

Know the Whole Case, but Keep the Focus Narrow

Madison Scaggs of Howard & Howard: "I always think to myself, even though I can't make myself the most experienced arguer, you can certainly control your knowledge of the facts of the case, the key cases and the main arguments, and just prepare, prepare, prepare."

Kim Hill of Kirkland & Ellis: "I think my tip would be to over-prepare for your first few arguments. It's definitely better to know too much than to know too little. Another tip I have is, if the judge asks you a question and you've over-prepared but you still don't know the answer, to just say, 'Judge, I'm not sure. We can check and get back to you on that.' You never want to overrepresent your knowledge to the judge."

Sullivan & Worcester’s Rosenblatt: "You want to be targeted in the issues that are likely to come up. It can always go beyond the papers. You can always get a little bit of a surprise where the judge asks a question. So having that broader knowledge is helpful, but I think being targeted as to the issue that's teed up for adjudication will really help you prevent that over-preparation."

Teamwork, Outlines and Other Help With Preparation

Raj Mathur of Susman Godfrey: "One thing that we do at Susman Godfrey is a document called 'Hardest Questions, Best Answers,' which is what it sounds like. It's a list of your hardest questions and your best answers to those questions. That has been a very useful idea or document in my practice because it forces you to think about your case really critically and think, ‘What is the worst case question that I could get in this argument? And if I do get that question, what is my response?’"

Kirkland’s Hill: "I'll write a long outline that has all of the detailed information that I've compiled from all of the various sources, and that's sort of my study process; that long outline does not get used for anything. Then I'll turn that long outline into a short outline, which is what I will use when I actually argue. Typically, at Kirkland, there's an iterative process—no one is going up for an argument without any feedback from anyone on the team about what you're going to say."

Hogan Lovells’ Cassel-Walker: "On all of our cases, we have a supervising partner, and so as I'm coming up with questions, if I'm thinking through an answer, I might reach out to the partner, and we might talk through one of those answers … In addition to giving those answers during the moot, I'm soliciting feedback at the end of the moot to see how those questions landed, because something that might seem persuasive to me as someone who has kind of been eating, sleeping and breathing the facts and the law of this case may not land the same way for someone who is approaching the case for the first time, like many of the panel judges will be."

Practice, Practice, Practice …

Lauren Engelmyer of Ballard Spahr: “I think, in many ways, the most terrifying part is just hearing yourself speak in court for the first time ... I must have rehearsed 500 times just saying, 'Good morning, your honor,' and getting comfortable with those words coming out of my mouth.”

Elliott Averett of Bryan Cave: "Go to the physical space. Go into the room. Look around if it's open. Stand there at the podium if the courtroom's empty and just kind of get comfortable in the space or, if you don't have access to the space, something that sort of looks and feels like that space."

Susman Godfrey’s Mathur: “I don't know how I look to other people, but I practice out loud as I'm walking around … I find that helps with the nerves a bit because you've spoken these words out loud so many times that you feel ready to do it when you get up to the podium.”

Hogan Lovells’ Cassel-Walker: "One of the things that I think is hardest about preparing for argument is maximizing the amount of content you can deliver in a very short amount of time. Often you have 15 minutes … 10 minutes for an argument. So being able to improve the amount of content you can deliver without speeding up your pace is something that takes a lot of practice. Having the framework of writing down questions, those questions leading to more questions, answering them and refining those answers is a process that helped both make me more familiar with the law and the facts as I was gearing up for argument, but also build the muscle memory of thinking about questions and talking through the answers."

… But Don’t Over-Script It

Jones Walker’s Oppenheim: "I think the most important preparation tool that I use is that I try to anticipate all possible questions that might come from the court or issues that might be raised by opposing counsel, and then I think about how I would answer those questions. But I don't necessarily write out a canned answer because I don't find that to be the best way to prepare. I generally like to just think through the issues so that I know what I think I should expect and how I would respond."

Susman Godfrey’s Mathur: "A risk with over-practicing or over-scripting can be that you get a question, but it doesn't fit neatly within your framework, and so you go off on your script, but that's not responsive to whatever the court's concern is. I think in every argument that I've had, I've gotten a question that despite doing five moots or thinking about the case for weeks, I just totally did not expect. So you can't script every moment, but you can certainly practice so you feel comfortable dealing with a totally new topic."

Overcoming Nervousness and Other Advice

Howard & Howard’s Scaggs: "Even during my job interview, I remember saying that I have a fear of public speaking. I've always felt more confident with writing briefs and just writing in general. … I feel like at my firm, the message has been more, 'Yeah, nobody really likes public speaking,' or 'Everybody has a little bit of a fear.' It's probably healthy to have some nerves whenever you're arguing on motion because that shows that you care about the outcome."

Bryan Cave’s Averett: "I think most people know their case very well. They know their briefing and their record. If they don't, they really should be committed to learning that. But most people, I think, know it really well, and the nervousness is their biggest impediment. So whatever they need to do to feel comfortable is going to be what sort of improves their performance in that respect. That's easy to say and hard to do, but that's the biggest thing."

Ballard Spahr’s Engelmyer: "Respect is the most important thing when you walk into a courtroom, but that doesn't mean that you need to concede points to the judge. I mean, the whole point of oral argument is that the judge wants to push you on points and hear your response. Otherwise, they would just decide it on the papers."

Sullivan & Worcester’s Rosenblatt: "I was way, way over-prepared my first time arguing. I was ready for this argument. I got up there and the judge had absolutely no idea why we were there. … For me, that was probably the biggest lesson of the court system being overburdened. You really have to go in assuming that your job in oral argument is to teach the judge what they need to know. You can't have any assumptions that they've done their homework in advance, because it's just overwhelming from the bench."

Bryan Cave’s Martinez: "There are some [attorneys] who are more professional and formal, and that's who they are as a person. That's why they argue that way. And then there's others who are kind of more practical and just speak in real, plain language. We all want to be professional, but that's kind of more my style, if you will. Just being able to see others do it that way kind of gives you permission to do it that way as well, and to know that it's okay and that you can be yourself."