You are on page 1of 24

How to Prepare for

and Give an Effective


Oral Argument

Professor Schack

Prepared for: Appellate In-House Competition


Oral Argument

"[O]ral argument the chance to make


a difference in result is extremely
valuable to litigants. If oral argument is to
be more than an empty ritual, it must
provide the litigants with an opportunity
to persuade those who will actually
decide an appeal." Moles v Regents of
Univ. of Cal., 32 C3d 867, 872, 187 CR
557 (1982).
Rules of
Professional Conduct 3.3
(a) A lawyer shall not knowingly:
(1) Make a false statement of material
fact or law to a tribunal;
***
(3) Fail to disclose to the tribunal legal
authority in the controlling jurisdiction
known to the lawyer to be directly
adverse to the position of the client and
not disclosed by opposing counsel[.]
ADMISSION TO PRACTICE RULE 5

I solemnly declare . . .
I will employ for the purpose of
maintaining the causes confided to me
only those means consistent with truth
and honor. I will never seek to mislead
the judge or jury by any artifice or false
statement.
Audience and Purpose

Your audience is a panel of judges.


concerned with doing justice on the facts of
the particular case.
Your purpose is to educate and
persuade. But oral argument is not a
reiteration or reading of your brief. You
are present to engage in a dialogue with
the court about the law and your case.
Do not read your argument!
(Court Rules)

RAP 11.4(g)
(g) Reading at Length. Counsel should avoid reading at
length from briefs, records, or authorities.
FRAP 34(c) Order and Content of Arguments
Counsel must not read at length from briefs, records, or
authorities.
Supreme Court Rule 28(1):
Oral argument read from a prepared text is not favored
Supreme Court Rule 352(c) specifically prohibits reading
"at length from the record, briefs, or authorities."
Guide for Counsel in cases to be argued before the
United States Supreme Court:
Under no circumstances should you read your argument
from a prepared script.
Twin Pillars of an Effective
Oral Argument
Balance being in control with being flexible!

The pitfalls of wanting too much control:


Tendency to become the speech maker or off-the-cuff commentator
The lawyer bent on delivering a carefully drafted speech is quickly
disconcerted by interruptions and questions that take the advocate off
message.
The spontaneous commentator, despite his quiz-show ingenuity,
spars with the bench but fails to guide the discussion to any
discernible goal.
The pitfalls of wanting to be overly flexible:
The lawyer depend on questions to organize their argument.
What does this mean for the
advocate?
(Objectives)
Execute your Strategy: Be able to simplify a
complex
Strategy:argument
Prepared:
Flexible Select
Know
Questions so
the that
Goal:arguments
facts
Know
are the
what judge
your cantoand
ofcalibrated
you case
want.
opportunities understand
winthe
decide
law.
Respond:
your
onBethe ordertoinopposing
assertions and
which counsels
support
you for
will points
those
argue and to the
assertions
your issues
able to answer the judges questions and use the
exchange
and between
present your opposing counsel and the court .
arguments.
questions to make the points that you want to make
or use the question to segue back into your argumen

Be able to adjust your arguments to the points raised


by the court and opposing counsel.
Oral Arguments are Focused
Appellate arguments are sharply focused
The clock permits no other approach.

In contrast to the brief, the oral argument has a


narrower focus.

Allocate your time so that you will be able to make


the arguments.
Plan on having half the time to make your argument
and half the time to answer questions .
Have a plan B in anticipation of a cold court.
Preparing Your Argument

Have an outline, not a prepared text.


Less is more.

Have an opening prepared (but dont read it during your


argument).

Your opening should include:


ID yourself and your client
Reserve rebuttal (if appellant)
Your legal theory
Your theme
Issues and relief requested stated affirmatively
Your roadmap
A word about the legal theory and theme:

Legal theory:
Why you are legally entitled to win.

Theme:
Why you are morally entitled to win.
ARGUMENT

Ground your argument in the law

Standard of review
As in your brief, state the law and your facts in a
favorable light.
Use the rules and cases to make your argument.

For example, Your Honor, the statement that the alleged assailants
were members of a gang will prejudice Mr. Simmons because it is likely
to evoke an emotional response, not a rational decision, from the
jurors . . .
Use a principle-based positive assertion to move into
the discussion of a case.
For example, Your Honor, where, as here, statements were made in
the face of an ongoing emergency, they are non-testimonial and, thus,
admissible without running afoul of the Confrontation Clause. [Then,
discuss analogous case]
Have a closing, including your request
for relief, prepared.

Anticipate the courts questions.


Where are the potential weaknesses in
your argument?
In your opponents?
Answering Questions

Questions from the court

tell you what the court is thinking and

tell you where the court needs clarification.


The court may ask questions
for information
for clarification on a point
to understand your position
to test the merits of your case
You should welcome questions as an
opportunity to address the courts
concerns and to engage in a dialogue
with the court.

Listen to the questions. What is it that


the judge is concerned about?

A.K.A.: THE CALL OF THE QUESTION


When you answer a question, normally give
a short answer and then give a more
developed response.

Answer with yes or no when appropriate.


Answer with yes, except when or no, when if
the answer is not absolute.
Use dovetailing by taking phrases from the
question and inserting them into your answer.
Dont back into your answer.
Avoid stream of consciousness answers.
Never talk over the court. When the
court asks a question, stop talking.

Answer the question. Do not say that


you will get to it later.
After you answer the question, segue
back into your argument (or, better yet,
use the answer to make your argument).

And do not make the answer tougher


than it issome questions really are
softballs.
Questions you can expect to be
asked
What is the standard of review?
What is your bottom line exactly what do you want the
court to do
Do you concede that . . . ?
Conceding facts vs. legal argument be careful.
What is your authority?
(questions about precedent)
If we think ______, do you lose?
(case-dispositve questions)
RESPONSIVENESS

What does this mean for the


Petitioner/Appellant?

What does this mean for the


Respondent?
The Basics
The moving party sits on the left as you face the court.

When the judge enters the courtroom, rise. Remain


standing until the judge sits down. You may then sit
down.

When the judge is ready, he or she will call the case.

When asked if you are ready, stand and say, Yes, Your
Honor. The State/Defendant is ready. Then the States
counsel should move to the podium.
The Basics (contd)
Avoid distracting mannerisms.

Listen carefully to the proceedings: to what opposing counsel is


arguing and to the courts questions and concerns.

Watch your time. End when your time is up (or before). If you
run out of time, say thank you and sit down or ask if you can
briefly conclude (and do so).
End strong!

Speak with conviction. Know what you want, and be able to


express it clearly and succinctly.

Avoid throat clearing language: I think and I believe.


The Basics (contd)
Stand when you are addressed by the court.

Address the court as Your Honor, this Court, or by title and last
name, such as Judge Jones.

Be respectful to the court, court personnel, opposing counsel, and


the parties.

Make eye contact.

Use a conversational tone and speak in short sentences.

Address the court, not opposing counsel.

Dress and act professionally.