Check at Every Feather

“This fellow is wise enough to play the fool,

  And to do that well craves a kind of wit.

  He must observe their mood on whom he jests,

  The quality of persons, and the time,

  And, like the haggard, check at every feather

  That comes before the eye.”

- Twelfth Night III,1; Viola describing Feste’s follery as a modified version of courtliness

If you are committed to doing an oral argument, the only attitude to take is that you can affect the mind of the judges on the panel. Any other assumption is both self-defeating and counterproductive.

But can you really change a judge’s mind at oral argument? One writer stated that:

“oral arguments are as useless today as the judges during my clerkship considered them. . . .Oral arguments have become little more than a moot court exercise. . . At the end of the day, you may have picked up points for style, but you have still lost your case.”

Note that this was written by someone who represents criminal defendants in Texas.

This kind of advice does you no good when you are staring a panel of judges in the eyes. I contend that your style in oral argument can have a significant impact on the outcome of your appeal. Former U.S. Supreme Court Justice William Brennan Jr. observed that his “whole notion of what a case is about crystallizes at oral argument.”  You can win or lose a case at oral argument.

So when speaking truth to a court, rather than emulating our cynical Lone Star colleague, imitate the experts: Shakespeare’s fools. Let Viola’s praise of Feste’s courtly wisdom guide you. Observe the mood of the judges to whom you speak. Who are they? How have they leaned on matters like this before? What is their demeanor? Let these questions modify your style as you bring your well-prepared argument home.

It's public speaking 101: know your audience. Believe you can change the mind of the judges. Pay attention.

Remember to check their feathers.