Oral Argument Tips

Take The Time To Prepare

• Know the record and all the cases cited by both sides, and the effect each has on your case.

• Think carefully about what are the weakest parts of your case, and the strongest parts of the other side’s. Try to anticipate what questions the judges might have, particularly the hardest questions. Think through and practice your answers to those questions.

• Hold a moot court in preparation for your oral argument. Choose the moot court judges carefully and thoughtfully. Have your judges ask you tough questions, including hypothetical ones. Make sure your legal analysis stands up to the tough questioning; in fact, do not stop until it does. After your mock argument is over, have the judges critique your performance candidly and thoroughly.

• If it is the first time you are arguing before a specific court, take the time to visit the court prior to your argument. Learn where you check in and where the time indicators are located. Even if the panel you see is not the one who will hear your case, watch how they approach the lawyers and the issues.

• In courts where you can find out the identity of the panel prior to the argument, get informed. Read biographical information; try to get a sense of how the judges’ backgrounds might affect their view of your case. Were any of them trial judges? Prosecutors? Did they practice in the subject matter area that your case is about, or a related area? Get a hold of anything they have published on topic that even remotely involves the issues in your case, from cases to law review articles.

• If your court is one that groups similar cases for argument on the same day, try to exchange briefs with the lawyers on the other cases.

• Arrive at the courthouse at least an hour before the court begins for the day (some courts require you to sign in at a specific time prior to the start of the calendar). Learn from the experiences of counsel who argue before you.

Focus Your Argument and Presentation

• Do not shy away from spoonfeeding the judges. Remember that yours is only one of a number of cases they are deciding that day, or that week, and that (in most courts) they are only generalists who may need education in the area of law.

• Present your issues (and not too many of them) with a unifying theme.

• Have a natural style of speaking – do not make an impassioned speech. There is no jury there to be persuaded by your rhetoric.

• Make eye contact with each judge on the panel. In a three judge panel, one judge’s view could change your result.

• After you’ve made your points, if the court has no further questions, sit down.

• You will have time to make only one or two simple and direct points on rebuttal. Use the time carefully, and again, sit down after you’ve made your points.

• Finally, remember not to get mired in the intricacies of your case, if they are not issues that are necessary to winning your appeal.

Answer the Questions

• Welcome questions. Oral argument should be a dialogue. Do not get defensive at what you think is unfriendly questioning. A judge may just be exploring the strengths and weaknesses of your argument in preparation for writing an opinion in your favor. Or a judge may be trying to sort out in his or her own mind an argument s/he finds troublesome. Or s/he may be trying to convince a colleague. Questions give you the opportunity to help the judges reach a comfort level in agreeing with your argument.

• Questions should be answered immediately. Questions that call for a “yes” or “no” answer should first be answered with a “yes” or a “no,” followed (if and as appropriate) with a brief yet complete explanation. Then try to incorporate the question and its answer into the theme of your argument.

• Do not bluff if a judge asks you a question for which you do not know the answer. “I don’t know” is an acceptable answer. In many courts, it is also acceptable to ask permission to file a supplemental letter or memorandum addressing a point that you were not prepared to address at oral argument.

• Do not lose credibility by refusing to make concessions that are unhelpful to your case, but unavoidable nonetheless. Explain why the concession should not affect the result of the case.

• Make sure you have answers to questions that seek to explore the implications of reaching the holding you are asking the court to reach. Your case does not exist in a vacuum. The appellate court is as (or even more) concerned about the effect of its ruling in your case on future cases than it is on the outcome of your case.

Articles

Honorable Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument, § 3.4 2d Ed. NITA (2003)

Honorable Robert R. (Bobby) Baldock, et al.,What Appellate Advocates Seek from Appellate Judges and What Appellate Judges Seek from Appellate Advocates (panel discussion), 31 N.M. L. REV. 266 (Winter 2001)

Honorable John Biggs Jr., et al, In the Matter of Oral Argument, THE PRACTICAL LAWYER 12 (1955)

Honorable Myron H. Bright, The Ten Commandments of Oral Argument, 67 A.B.A. J. 1136 (1981).

Honorable Myron H. Bright and The Honorable Richard S. Arnold, Oral Argument? It May be Crucial, 70 A.B.A. J. 68 (1984).

Honorable Frank Coffin, A Lexicon of Oral Advocacy, NITA (1984)

Honorable William A. Dreier, Advice to the Novice (and Seasoned) Appellate Lawyer, N.J. L AW . 19 (April 2003)

Honorable Leonard I. Garth, How to Appeal to an Appellate Judge, LITIGATION , Fall 1994, at 20.

Honorable Joseph W. Hatchett & Robert J. Telfer, III, The Importance of Appellate Oral Argument, 33 STETSON L. REV . 139 (Fall 2003)

Honorable Michael Daly Hawkins, Your Worst Nightmare: Things That Can Go Bump on Appeal, LITIGATION Spring 1996, at 5.

Honorable Alex Kozinski, How You Too Can Lose Your Appeal, Montana Lawyer (Oct. 1997).

Honorable Lawrence W. Pierce, Appellate Advocacy: Some Reflections from the Bench, 61 FORDHAM L. REV . 829 (1992-93).

Honorable Richard Posner, Convincing a Federal Court of Appeals, LITIGATION , Winter 1999, at 3.

Honorable William C. Whitbeck, View From the Bench: Michigan Court of Appeals, Part 1: Arguing to Win at the Court of Appeals, MICH. B.J., July 2006, at 24.

Honorable Michael A. Wolff, From the Mouth of a Fish: an Appellate Judge Reflects on Oral Argument, 45 ST . LOUIS U. L.J. 097 (2001)