Basic oral arguments

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Any treatment of oral arguments as brief as this one it necessarily too brief. As an introduction for 1Ls, however, this page may suffice. There are many resources to help, including chapter 14 in Joan M. Rocklin et al., An Advocate Persuades (2016). Many of the ideas on this page are adapted from Bradley G. Clary, Primer on the Analysis and Presentation of Legal Argument (1992) and Alan L. Dworsky, The Little Book on Oral Argument (1991).

Most advocates win their oral arguments with their preparation, so this post begins with preparation.

Preparation

Preparation for oral argument comes in two forms: Preparing yourself generally to be an effective public speaker, and preparing yourself specifically to argue the motion or appeal for which you are appearing.

Preparing yourself generally

Explore the following advice to prepare yourself to be a better speaker before a judge, a business meeting, a board meeting, etc.

  1. Pay attention to your posture and breathing in day-to-day activities.
  2. Breathe deeply; be especially attentive to avoiding shallow breathing when nervous or distracted.
  3. Sit up and stand up straight; don’t collapse the chest.
  4. Stand on both feet and distribute your weight evenly; don’t sway.
  5. Find out what your distracting movements are (hands in pockets; fiddling with hair or glasses; scratching; fidgeting; leaning on things; etc.) and become conscious of reducing their occurrence.
  6. Practice reducing in everyday speech the elements that interfere with effective oral presentation. For example, reducing  ‘ah’ or ’um’ and avoiding linking sentences together with ‘and’ or ’o.k.’
  7. Prefer short sentences.
  8. Eliminate sentence introductions that don’t get to the point (e.g., ‘I was thinking that it would be a good idea if…’ or ‘The fact that…’ should be cut, and the sentences should start where the ellipses begin).
  9. Become comfortable with pauses. You can stop speaking for three seconds—which seems like an eternity to you as the speaker—without it seeming like long at all to your audience.

Preparing for this argument

You need to take special steps to prepare for an oral argument in a trial or appellate case. Consider these tips:

  1. Know your case.
  2. A tabbed argument notebook can be a helpful reference during the preparation and practice period. Its contents can include the briefs, main legal authorities, key parts of the record, possible questions with answers, ideas for useful hypotheticals and examples to illustrate arguments or respond to questions.
  3. Be familiar with the record. Be prepared to cite to specific parts.
  4. Learn about the court.
  5. Know all of the court’s relevant rules.
  6. Work out answers to likely questions, and your best responses to your opponent’s best arguments.
  7. Prepare a slick and useful reference to use at the lectern. A manila folder with two pages of key outlined notes taped inside is as much as is needed there. See An Advocate Persuades at 334–35 for a simple example. Students at UMKC School of Law prepared a video with an interesting approach. You may wish to bring the tabbed argument notebook identified above, but it should not be your principal aid.
  8. Arrive early and know what the facilities are. If possible, watch the arguments that precede yours.

In the courtroom

First, understand that a good argument is not a speech; it’s a conversation between the court and the advocates. The purpose of the oral argument is to make sure that the judge understands the arguments in your briefs. The judge’s questions during oral argument guide you to her concerns and allow you to emphasize those parts of your argument that address those concerns. This section explains briefly how to deliver the argument, including appropriate conduct in and around the courtroom, presenting your argument, answering the court’s questions, and rebutting your opponent, if you have the opportunity to do so.

Conduct and Deference

  1. You’re always ‘on’; any conduct anywhere in or near the courthouse should be as controlled as if you were at the lectern addressing the court. Your conduct reflects on your client even when you are a spectator in the courtroom or are sitting at counsel table while your opponent argues.
  2. Make no visible or audible reaction to opposing counsel’s presentation.
  3. Treat all court personnel with utmost courtesy and respect.
  4. A judge is addressed as ‘your honor’; be respectful and deferential to the court and its personnel but not obsequious.
  5. Always stand when addressing or being addressed by the court, whether you are behind the lectern or at counsel’s table. (In some courtrooms, this is not the norm, so watching arguments before the same judge before you appear before her is a good idea.)

Presentation

An appropriate, and often-used, way to begin includes these elements: ‘May it please the court’ (before an appellate court) or ‘Good morning/afternoon, your honor’ (before a trial court). ‘My name is…’ ‘I represent…’ ‘This case is about…’/ ‘This case is not..’ ‘The court should grant/deny [or reverse/affirm] because…’ (One, two, or three key reasons; this is the road map for what follows). The following suggestions will prove helpful for constructing the rest of the oral argument.

  1. Get to the crux of the case: What does this case reduce to? Why should the court grant/deny or reverse/affirm? Why should the court draw the line where you ask it to? You may be responding to questions during the entire argument time; decide what is so significant that it must be said, and say it in the first three sentences.
  2. What is the big picture—what policy or efficiency concerns are addressed by the position you argue?
  3. Personalize your client.
  4. Believe in your client’s cause—or at least believe in our system of zealous representation by advocates.
  5. Watch your time so you can end with a strong 10- or 20-second conclusion (not a summary). Don’t take or ask for more time unless in the middle of a judge’s question; then, simply ensure that you may complete a short answer by inquiring ‘Your honor, may I quickly finish my answer?’
  6. Remind yourself that most of the nervousness a speaker feels does not show.
  7. Maintain eye contact with the court.
  8. Bloopers are not a big deal; make a small correction, if it was an error, or pause and collect yourself quietly, if you lose your thought, but don’t go on to comment on it or apologize for things that don’t need an apology.

Questions from the court

  1. A main purpose for an oral argument is for the court to hear your answers to its questions.
  2. Listen carefully to questions; if you’re unsure of the question, admit that you may not have heard it accurately and proffer your interpretation of the question, looking and listening attentively for additional clues from the judge.
  3. Give direct answers. If at all possible, begin an answer with yes or no; then give a succinct explanation, and lead back into your argument.
  4. Keep foremost the essential theme of your case; show the court an easy way to find for your client and, in so doing, also achieve a just or efficient result. The court should want to find for your client, and have a permissible legal route to do so.

Rebuttal

  1. The moving party (or, if on appeal, the appellant) should reserve a few minutes for rebuttal, but not plan to use all—or perhaps any—of it.
  2. Omit an introduction; directly address the one or two most important points, and stop. Some would limit rebuttal to correcting your opponent’s misstatement of fact or law; hitting on an obviously weak or poorly handled part of the opposing case; or, if you had a weak answer before and can greatly improve it, patching up a missed opportunity from your argument.
  3. The danger in rebuttal is getting a question from the court that hits a weak spot in your case and undercuts a strong ending. Weigh this in planning your strategy.
  4. Have a strong eight-second ending with which you can conclude your rebuttal no matter how things are going at the end.

Examples

Alexa Z. Chew and Katie Rose Guest Pryal’s text The Complete Legal Writer has an online resource including links to motion arguments in federal court. A couple of interesting arguments include these:

Last Updated On March 26, 2019

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