A Theatre Kid’s Lessons for Appellate Practice
There’s a “theatre kid”-to-law-school pipeline.[*] Back in 2000, three out of four in my summer associate class, including me, were former theater majors. Although the parallels between theater and trials are more apparent, here are a few theater lessons that translate to appellate practice.
1. You have to love it to try making a career of it.
Just like there are many more talented actors than roles, there are more lawyers who want to do appeals than there are appeals. I never considered trying an acting career. I knew I’d be up against people who were far more talented and worked harder. They loved it and wanted it more than I did.
My first appellate argument in 2005 was like when the acting bug hit, but stronger. Even then, it took 15 more years before appeals reliably became the majority of my practice. Only love for appeals got me through the many dry spells.
2. You’re bringing someone else’s vision to life.
Actors may be the most visible part of the production, but they’re still working toward the director’s vision.
On the appellate side, don’t let the lectern fool you into thinking the case is about you. This isn’t debate club. You can collect rave reviews for rhetoric and style, but you haven’t done your job if your client doesn’t feel heard.
3. Embrace the source material.
All scripts have problems. You have to embrace those flaws because they’re part of the show. If you lose commitment, the audience will too.
In appellate practice, you have to embrace the entire record, especially the parts that could cut against you. If your argument doesn’t account for your weak points, your strong points aren’t likely to rescue you.
4. Know everyone’s lines, not just your own.
If you only know your own cues and lines on stage, your timing will be off, and you’ll be unprepared to help get things back on course if something goes wrong.
When writing a brief, you should try predicting what your opponent’s response or reply brief will say. When preparing for argument, you should scrutinize your opponent’s briefing, plus any transcripts or video of prior arguments, to guard against surprises. At every stage, you should be thinking about what questions a skeptical judge may have.
5. Engage your entire audience.
On stage, a line you deliver to another character is for the entire audience to hear.
In appeals, you’re arguing to a multi-judge panel. A trial lawyer’s skill in persuading a single judge can backfire on appeal. Your answer may please the questioner while alienating the rest of the panel. A question from an appellate judge or justice is a question from the Court, and I try to address my response to the entire Court.
6. Bring passion and authenticity every time.
No matter the audience’s size, and no matter how you feel on a given day, each audience deserves your best effort.
Every appellate representation is a privilege, and every client wants a lawyer who is passionate for their cause. Whether you’re stoic at the lectern or animated like me, clients and judges can tell whether you believe in your argument.
7. Forgive your nerves.
Stage fright doesn’t mean you don’t belong on stage. It means you care about doing your best.
For oral argument, nerves are natural. My hands always shake. If the day comes when I stop feeling nervous, it will mean it’s time for me to hang it up and hand the opportunity to someone else who cares more.
8. Warm up your voice backstage.
This advice is literal. Theater-style vocal warm-ups reduce the risk of tripping over your words at the lectern. On a day I’m arguing, you may hear me uttering outside the courtroom: “To sit in solemn silence on a dull, dark dock” or “The Human Torch was denied a bank loan.”
9. You may need a day job.
Waiting tables may be a cliché, but day jobs are a reality for most aspiring actors.
Most full-time appellate jobs involve working for the government or a public defender’s office. In private practice, few appellate specialists do appeals full-time. The rest of your practice should be work that you enjoy, and that complements your appellate practice. About 30% of my practice involves advising and representing property and casualty insurers. I enjoy the work, and the careful writing and analysis hone my appellate skills.
[*] It’s “theatre kid” with an “re” because that’s how theatre kids roll.
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