"I am constantly amazed, during Supreme Court arguments, to hear an attorney virtually struck dumb by questions from the bench that anyone with knowledge of the case should have anticipated. It is as if the attorney has become so imbued with the spirit of his cause that he has totally blindsided himself to the legitimate concerns that someone else might have in adopting his position." -E. Barret Prettyman, Jr.
David Boies shared a similar sentiment during a lecture he delivered at my law school some six years ago. He remarked that one of the most challenging aspects of litigation is being both a zealous advocate while at the same time maintaining a ruthlessly honest, objective assessment of the strength of your case. I should have heeded such advice when appearing for oral argument on an appeal I handled early in my career.
The defendant claimed the trial court deprived him of his right to a fair trial by making some unkind remarks about his attorney's advocacy in front of the jury. I crafted what I still believe was a very strong argument in response: counsel goaded the court into making the now complained about comments as he was clearly attempting to engineer a mistrial for his client. Moreover, however improper the court's remarks, the mixed verdict reflected that the jury based its verdict on the evidence, and, therefore, no prejudice inured to defendant as a result of the court's comments.
So deeply I believed in the strength of this argument that I was blindsided by the court's first question and which I realized soon thereafter was the logical result of my position: how can an appellate tribunal sustain the defendant's conviction without also sanctioning the court's obviously improper remarks? Lesson: Let the brief sit after writing the first draft. Give your brain a rest. Then return a few days later with a red pen and comment on every single argument that your adversary or the court may find troubling. You will be grateful for taking this exercise when you will have ready answers for those questions directed toward the weakest aspects of your case.