As a young appellate lawyer, I got the idea that one must keep one's hands on the lectern during oral arguments.
I don't remember where I got that idea, but it's fairly common advice. The idea is that OA is formal and gesturing is too casual and can be distracting. 1/
Hands dutifully on podium, my next argument or two stunk.
I'd be at the lectern giving my argument, and the voice in my head listening to myself was shouting, "hey idiot, stop the deadly monotone!" and I couldn't. I had no idea why. Nerves? It was strange and unsettling. 2/
Then I read a book called The Articulate Advocate, by Brian Johnson and Marsha Hunter. Drawing on a robust body of scientific research, they argue that gesturing with your hands and arms is important for effective communication. 3/
The passage that changed everything for me was this:
"When your gestures are restrained, your speech tends towards monotone. Ideas are not delivered clearly and emphatically because the gesture needed to accompany the word is absent or underpowered." 4/
"Both your langauge and your listener suffer," they concluded. 5/
Ever since reading that book almost a decade ago, I've used gestures freely during oral argument. I've never had a judge (moot or real) tell me to quit the Kermit-the-Frog arm waving. And my monotone problem has never come back. 6/
I had one argument where I prepared a specific gesture to go with my most important line, a big, bold arm gesture I'd never have dared to try way back when. Afterward, the presiding judge told the courtroom how unusually good both sides' arguments were. 7/
So, my advice:
1. Don't keep your hands on the lectern during your OA. Instead, learn to use gestures effectively.
2. As a young lawyer, don't assume that all the advice you get, or the SOP you see around you, reflects the high standards you aspire to. /end
Don't miss @BryanGividen's great thread collecting argument videos of famous advocates using gestures effectively.
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1. Progressives are waking up to the importance of younger nominees for federal judges.
But one reason why it's so important hasn't gotten enough attention yet: circuit chief judgeships.
2. Circuit chief judges wield real power. Their control of opinion assignments and administrative control make them the most powerful non-Scotus federal judges. (@marinklevy and Judge Newman have an article on the way in @PennLRev on the office of the chief judge.)
3. Who becomes circuit chief is complicated, but the key part is that you can't become chief once you turn 65.
In practice, this means that younger nominees are far more likely to become chief than older ones.
1. Some legal-writing advice meant esp for first-gen law students.
College taught me that the key to good writing was originality. 1L-year exams taught me that sounding like a lawyer was about spotting every issue.
To become a good legal writer, I had to unlearn both lessons.
2. Good legal writing isn't about coming up with clever new ideas or expressing them in a unique new way. And it's nothing at all like an issue-spotting final exam.
Good legal writing is about clarity.
3. Once you figure out what your most important points are, your job—your only job, more or less—is to state them as clearly as possible.
When McConnell does things like demand Ds honor R circuit blue slips in 2009 or demand Ds honor R filibusters in 2021, despite not doing those things for Ds when he was in power, the problem isn't hypocrisy. It's worse.
McConnell isn't failing to honor his own principles. McConnell's only guiding principle is "If the rules don't prevent it and it adds to GOP power, we'll do it." He's quite consistent about following it.
So when McConnell demands that Ds do this or that, he's simply try to keep Ds from using their power the way he uses his. And why not? It's always worked for him before.
A strong opinion that many of my fellow progressives may strongly disagree with: Biden should put Orin Kerr, a fairly conservative Republican, on the Ninth Circuit.
Look, I anticipate spending the next 4 years mad at the Biden admin for being too timid with judicial nominations. I firmly believe Biden needs to play by the new rules, not the old ones. The days of Ds slowly nominating a bunch of mid-50s moderate prosecutors are over.
Big-picture, Biden's job is to unskew our Trump/Leo-skewed courts. In my view that means putting a lot of brilliant, dynamic, solidly progressive 30- and 40-something black women in circuit seats.
There's growing willingness to acknowledge the ways in which Trump's work of building and clinging to power resemble Hitler's. Good.
But this week the history that keeps flashing in my mind isn't Nazi Germany, it's pre-WWII Japan's May 15 Incident.
A thread. 1/
Japan after WWI was a two-party parliamentary constitutional democracy. The government functioned reasonably well into the 30s, weathering the depression better than its peers in the US and Europe. 2/
But a right-wing anti-democratic cancer took root in the lower ranks of the Japanese military. This cancer led to Japan's invasion of Manchuria in 1931 and the assassination of a former cabinet minister in 1932. 3/