Nearly 50 years ago, John W. Davis aptly commented that there would be scant occasion to listen to lawyers if appellate judges would divulge the secrets of oral argument. Supposing fishes had the gift of speech, who would listen to a fisherman's weary discourse on flycasting? The Argument of an Appeal, 26 ABA Journal 895 (1940). Two generations later, the fish have begun not only to speak, but also to give detailed advice to struggling flycasters. Appellate judges have furnished the bar with speeches, articles, and even books containing practical tips and insights. Consider, for example, the advice of the Justices of the Supreme Court of the United States.
In a recent television program commemorating the constitutional bicentennial (This Honorable Court, WETA, 1988), several of the Justices provided a behind-the bench view of oral argument. Justice Scalia, one of the Courts most active questioners during oral argument, said he was quite surprised at how much difference it makes. The
