A Day in the Life of a Lawyer

It's late on a Tuesday night, I'm in a different time zone and probably should be sleeping.  It's already after 11 and I need to be up at 7 in the morning for court. But with the change in time zone, I'm neither sleepy nor fully prepared. I can barely focus my nervous energy.

God help me.

I have something called an oral argument tomorrow. It's first thing in the morning, before the appellate court one level below the U.S. Supreme Court.

It will either provide me a unique opportunity to demonstrate the mastery of my appellate advocacy, and validate me against all my childhood critics, or it will be a Chinese water torture in which I demonstrate to the court and a room full of observing lawyers that I've wasted my life by choosing a profession the demands of which are hopelessly beyond my abilities.

It's pretty much one or the other.

Oral argument is the most intense adrenaline rush a lawyer can ever endure.  All eyes of the court focus on the lawyer, as he or she gets a specified time to make their case before a panel of appellate judges, who can--and do--interrupt at any time with questions. And anything is fair game.

The attorney must be prepared to know any fact within what is often a several-thousand-page record. (And you get bonus points if you can pinpoint the page of the transcript where that fact can be found). As the attorney, you must be prepared to discuss any similar case within your jurisdiction, and to argue how its facts either help your position or, at worst, are distinguishable from it.

You must not only be prepared to discuss how the law relates to your case, but how your case would turn out if the facts were just a little bit different in one critical regard, because judges like to think about the policy implications of their decisions.

And after you finish answering whatever specific question you face, you must seamlessly transition back into your argument until you get interrupted again, which is generally not long. Often the judges will start arguing with each other, asking you to solve their disagreement, and you must choose how to answer the questions without alienating either. The judges will point out potential flaws in the arguments of both sides and tell each of you why they might rule against you, and it's up to you to allay their fears or change their minds. 

Trials are stressful too, but often the witnesses have as much to do with the outcome as the lawyer. In an appellate oral argument, it's just two attorneys pushing down on the scales of justice, arguing whether or not the trial court got it right.

It is a high wire act, but there's no better feeling in law than pulling it off.

This particular case is harder than usual. It's full of complex medical terminology that is hard to understand. A different attorney handled it at the trial level, and even wrote the brief whose merits I was pressed into arguing when he left. I would not have approached it the way he did, and I as try to comprehend his complex procedural argument as to why the convicted defendant's ineffective assistance of counsel claim was not properly preserved for review, a sobering reality strikes me:

I'm one early morning brain fart away from enabling a guilty man go free through my sheer incompetence.

I try to look at the bright side. Maybe if I screw up, it will just mean that the defendant gets a new trial. In that case, it's not so bad. It just means that I'm one brain fart away from forcing some distant district attorney to have to re-call a long list of witnesses and panel a new jury and probably pay a new set of experts to come testify, and make any potential victim re-live their trauma.

Sometimes, that result is inescapable. If that's what justice demands, then so be it. But the idea that it might happen because I failed to think of the winning response to what should have been an answerable question is enough to drive one to drink.

Or at least it would be, if I didn't have court in just a few hours.

The work is never done in preparing for one of those things. There's always some other hypothetical question the judges might ask, some other fact from the record they might want to know. There's always some snappier way to deliver one of your lines. And you can never practice your presentation too many times.

This is especially challenging for me. Oral argument has always been my best skill as an attorney, but I'm consistently horrible when there's no audience in front of me, so I never really know how prepared I actually am.

Somewhere long after midnight, I recognize that my argument is as good as its ever going to be and settle into my hotel bedroom, setting two alarms and a wake-up call, just in case.

As I practice my delivery in the shower the next morning, I think of other questions about the factual record. I need to look through the trial transcript again, but my stomach is so torn up from the stress that I can't stay out of the bathroom for more than 3 minutes at a time to look at my computer.

After a few minutes too long, I find what I'm looking for (I mean, besides the bathroom), and race to court to check in for my argument a few minutes later than I would like. The clerk gives me a look, and I narrowly decide against explaining that my near-the-deadline arrival time was due entirely to the fire in my bowels.

Thankfully, I have just enough time to go back to the bathroom before court starts. This is already as bad as that colonoscopy I had last year, and I haven't even been examined by the judges yet.

Any lawyer is capable of getting inescapably confused by unexpected phrasing of a question or suddenly forgetting the name of their client at an inopportune time (which happens more often than you'd think).  Like a gymnast or figure skater, once you lose your rhythm and routine it's nearly impossible to get it back. No amount of preparation can fully guard against that, but one's ability to think outside the script at least improves with experience.

But weirdly, my butterflies always go away once I face my first question. I won't get the Court's opinion for weeks, but for now, at least, I'm happy with how I did.

I don't have the strength to celebrate when it's finally over. My mind goes numb (even more so than usual, that is) for awhile, but it eventually occurs to me how I could have better answered certain questions in the perfect world.

I know I can't make the world perfect, though. Instead, as I grab some coffee to sustain me for the long drive home, I just hope that I haven't made it worse by anything that I forgot.

What an odd profession I chose. Mechanics see a problem and fix it with their hands. Doctors see a problem and treat it with medicine. Lawyers see an issue and argue about whether it was a problem.

I just really hope I didn't leave anything out of that argument.