This blog post courtesy of Appellate Advocacy Blog & the article that it cites give occasion to think about oral argument. Oral argument before an appellate court is the epitome of lawyering, or should be. I love it. You hone your argument, anticipate questions, and get (appropriately) psyched. This is why you (or I, at least) went to law school. The courtroom is usually big-league (my one trip to the top of the Eagleton Building in St. Louis for an argument to the 8th Circuit was especially impressive). You begin your argument and find the judges lost, indifferent, or hostile.
What happened? The fact is, they may not have been well prepared, or they may have thought along v different lines than what you had expected. Either way, the argument becomes a letdown and perhaps your case goes down the drain.
The blog (and article) suggest ways that judges might improve the process by providing advocates with tentative decisions upon which to base their arguments. A trial court decision may have already done this, but in my experience, trial courts don’t get much play except to the extent that their findings of facet receive deference.
Even if you jurisdiction doesn’t adapt these suggestions, they provide a useful thought experiment for advocates preparing an argument.