Oral Argument – Know What You Want

“He was wont to speak plain and to the purpose, like an honest man and a soldier;”

• Much Ado About Nothing,  II,3; Benedict concerning Claudio

I will soon have an oral argument before the Tennessee Supreme Court, my 28th case before the Court. In some respects, oral arguments before the Supreme Court differ from those in the Court of Appeals.  My first argument (Vawter, Kennedy and Kennedy, P.C., for Use and Benefit of Kennedy v. Vawter, 776 S.W. 2d 520 (1989)), in 1988 (when I was 29 years old!) was a very different experience for me.  The movie Clueless comes to mind, as I had never even seen a Supreme Court argument. I was truly terrified.  I still remember how high and squeaky my voice was during the argument.  Fortunately, our side prevailed, or I probably would never have had the courage to try it again.

In most arguments before the Court of Appeals, the Court is interested in your knowledge of the record, the specific circumstances of your case, and the applicable law. However, the Supreme Court might ask larger questions about the impact of your requested relief that go beyond the specific circumstances of your case.  After all, the Court probably took your case to make new law. Therefore, it is especially helpful to prepare for questions like the following:

·         If you could craft the rule that you want this Court to adopt, what would it be?

·         Is there a compromise rule that will satisfy you?

·         What are the underlying policy grounds and good sense that support the result you want?

·         Why is it good for others, not just your client?

·         What specific relief do you want for your client?

The Court might be looking to you to participate in fashioning a state-wide rule that will affect other similarly situated parties.  You must be prepared to take the 30,000-foot  view and not just be an advocate for your client, but also for what is the best rule for the citizens of your whole state.