Wednesday, September 12, 2012

Reflections on my first SCOV arguement

September 11, 2012 at 2:00pm I started my first appellate argument.  A half an hour later, it was over.  Never in my life has time traveled so quickly.  The issue that we had oral argument on wasn't particularly interesting and was pretty abstract.  So, I am not going to write about that; instead, I want to gel my thoughts on the process.

For those of you who aren't familiar with the appellate process in this country, here is a quick run down.  Trial courts are the first court that handles a case. Those courts make rulings of law as a case is litigated.  Sometimes, those courts make findings of fact; although, that is usually left to a jury. If a party doesn't like one of those rulings, they may appeal to a high court.  Some jurisdictions have a multi-tiered system of appellate courts; Vermont does not.  So, in Vermont any decision that is appealed goes to the State's Supreme Court.  That is how I got there.

This summer I was an intern in a prosecutors office. One of the first things I did was write the brief for this case. As the other party appealed the decision, I had a template to respond to.  Based on the available law (which is limited in VT) and the facts of the case, I thought our position was very strong.  Once the oral argument was scheduled, the prosecutor's office asked if I wanted to argue the case.  I jumped at the opportunity because I thought it would be great experience.

One thing that athletics have taught me is that I always feel ready when the competition is far away; but once it gets close, I think of how unprepared I am and how much else I could have done. Needless to say, that horrifying feeling of unpreparedness was pretty intense before the argument. Unlike a bike race, I had never done this before (we do a pretend one in the second year of law school.  I was pretty bad at that), and somehow I managed to convince myself that I had missed something in the other party's brief and that I was going to get ambushed.  So, I spent much of the 36hrs before the argument feverishly going over the material I had used to compile my brief and trying to figure out better ways to articulate the abstract ideas my brief contained.

What did all of that preparation get me? In a rational world I would have felt confident and prepared; instead, all I had was a feeling that there was no good way to explain my position.  So, I took notes and prepared to get a thorough intelectual spanking.

I was lucky enough to catch a ride up to the Supreme Court with the supervising attorney from my summer internship. The ride took about half an hour.  We chatted, but not about the argument.  I cleared my mind.

We sat through the argument before mine. I thought it was pretty helpful. It gave me a flavor of the exchange between the Justices and the attorneys. Fortunately, the flavor wasn't bitter or strong; it was mild.  This reassured me, to a degree.

Our case was called. The attorney for the other side was not the attorney who wrote the brief, but a young woman, not that much older than me. The prosecutor with me did not know who it was, so we assumed she was a new hire.

Once the woman got through the formalities, she launched into an argument that was in there brief and that I hadn't researched. Panic set in.  Was I going to have to argue something I didn't know and had never even encountered?

Fortunately, procedure and rules saved my keister. One of the Justices asked if this issue had been briefed; it hadn't.  Then, the Justice asked if this was properly discussed here; it wasn't.

Finally, it was my turn to argue. Just as my experiences regarding preparation for athletic evens held true here, so my experience competing also held true.  Once it started the my preparation and competitiveness carried me through. It went by so fast.  I though only five of my fifteen minutes had gone by when I rested, but the entire block had expired.

In the end I enjoyed the experience for a variety of reasons. How does it compare to the trial level work I did the last two years?  It is hard to say definitively, but I don't think I want to spend all my time working at the appellate level; although, I wouldn't mind an occasion detour there.