Supreme Court and Appellate Advocacy.

DAVID C. FREDERICK West Group west.thomson.com 383 pp., $49

Historians remember Robert Jackson as both a Supreme Court justice who wrote with uncommon eloquence and the chief U.S. prosecutor at the Nuremburg war-crimes trials. Before he took on those historic roles, Jackson was a distinguished advocate before the Supreme Court as U.S. solicitor general.

Despite the esteem he earned there, Jackson once wrote that every case he brought to the High Court involved three separate arguments. The first was the argument he actually prepared, "logical, coherent, complete." The second was the one he delivered before the Court, "interrupted, incoherent, disjointed, disappointing." And the final was the "utterly devastating" one he composed after going to bed the night "after the argument.

That an attorney as accomplished as Jackson felt he was often thrown off his game during an intense oral argument serves as reassurance for more-mortal lawyers facing a hostile panel. Trial lawyers, too, often come up with their best opening and closing statements only after they have delivered less articulate ones--unfortunately, the ones that count.

In Supreme Court and Appellate Advocacy, attorney David Frederick provides practical tips to make oral argument preparation less nerve-wracking. Unlike most advocacy in a trial court, appellate argument at the Supreme Court level--the principal focus of this book--is replete with interruptions, fled closely to the law, and generally thought to be a rear-guard action rather than an affirmative opportunity to win a case. With more and more trial successes playing out in appeals courts, appellate advocacy is an area of growing concern for trial lawyers.

The popular wisdom is that one almost never wins a case in oral argument. That, however, does not mean that cases seemingly won in the briefing cannot be lost by a poor oral performance. Defeat can be snatched from the jaws of victory when an attorney opens questions and issues that were not otherwise readily apparent. If the lawyer understands the role of oral argument properly, he or she can use it to focus a court's attention on one or two key points that were made concretely in the briefs.

Appellate advocates typically prepare for oral argument feverishly. When the forum is the U.S. Supreme Court, the intensity increases exponentially. The current Court is considered a particularly "hot bench." The justices pepper counsel with questions almost immediately and do not mind interrupting the answer to pose another. As Frederick states, "if the attorney does not experience abject fear at least several times during the preparation period, he probably is not fully applying himself to the task."

Frederick organizes his advice logically, as befits his subject. A brief history of oral argument precedes the practical advice, explaining how reliance on written briefs has supplanted lengthy flights of oratory. Examples of good practices permeate the book.

Much of the advice tracks what trial lawyers know from experience. Counsel must hold the panel's attention and make plain only a few key points, whether that panel comprises judges or jurors. Eye contact and a natural tone and manner can be more important than the substance of what is said. Regardless of how thoroughly counsel has prepared and mastered the law, he or she must understand the audience and how it can best understand the message.

What sets this book apart from other materials on the same topic is its extensive use of examples from actual Supreme Court arguments. (Frederick also uses a few arguments from other federal appeals courts.) In many of these examples, the wisdom of the planned opening or how counsel turned a hostile question to advantage is apparent. A few, however, are less useful because the author fails to provide enough context. In such instances, the book would have profited from a more thorough explanation of what was at issue.

The author does an excellent job of explaining the Supreme Court for those not intimately familiar with it. He draws on insights he gained as a law clerk to Justice Byron White, as well as his own experience and that of his colleagues in the solicitor general's office. In fact, he relies heavily on arguments conducted by government attorneys. While the solicitor general's office boasts a fine group of advocates, their representation of government interests alone--often in criminal cases--limits the usefulness of their approaches for civil lawyers. Frederick might have provided a more generous helping of exemplary advocacy by nongovernment lawyers.

One chapter, "Common Mistakes in Oral Arguments," is perhaps the most useful (and entertaining) section of the book. Lost in flights of rhetoric or caught inadequately prepared, attorneys sometimes gamely try to cover up their errors, usually without success. Here, the examples are telling. For instance, Frederick describes how a defense counsel in the federal antitrust case against Microsoft began to read a prepared statement at oral argument. When the appeals court admonished him against reading to the bench, the attorney nonetheless read Oil, only to have the judges tune out entirely. In doing so, be squandered his opportunity to help them understand his case.

In another example, a lawyer arguing an unreasonable-search issue before the Supreme Court couched his argument in the "sanctity of the home." Chief Justice William Rehnquist immediately confronted him with the fact that the search and arrest had taken place in a motel room. The advocate ended up trying to justify treating a motel room as the equivalent of a "house" under the Fourth Amendment to get past his rhetorical turn of phrase, losing valuable time over a minor issue. The lawyer won his case, but his argument illustrates how an advocate can create unnecessary issues in oral argument by carelessly using pat phrases.

Although approaching every appellate argument as though it were a Supreme Court case is probably a good strategy, most will not involve the complexity, intensity of preparation, or significance of the appearances entered at the marble temple in Washington, D.C. The characteristics that Frederick praises in the best appellate advocates--intelligence, eloquence, learning, preparation, and quickness on one's feet--are important at every court level. Still, those traits are tested in different ways in different courts. A novice preparing to argue a more ordinary appeal would be better served by materials that focus on how to build and ground the premise of an argument. A novice in Supreme Court practice, however, would be well served by this book.

Robert S. Peck is president of the Center for Constitutional Litigation and senior director for Legal Affairs at ATLA. He argued Jinks v. Richland County in the U.S. Supreme Court last term.