Larry Lessig has an unsually candid self-assessment of his oral argument before the U.S. Supreme Court in the Eldred case; it’s entitled How I Lost the Big One.
It is unusually bold for Larry to say that his academic perspective was a detriment in preparing the Eldred case. I hate to agree with Lessig’s assessments (because I know he prepared extensively and I don’t want to appear to be critical of Larry in any way), but I completely grasp his point. And, as I said, it shows remarkable insight and courage for Larry to come to grips with why he might have lost (I don’t think it would have mattered if he had followed the optimal strategy, but of course we’ll never know).
Bottom line: this article should be mandatory reading for all moot court students and, of course, all lawyers who argue before courts. The law is important, but presenting your case in a way that motivates the court to want to rule in your favor is more important. It’s a hard lesson to learn, and most people learn it the hard way. I know I did.
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