How to Prepare for and Give an Effective Oral Argument Professor Schack

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
so
that
the
judge
cantoand
understand
Strategy:
Select
winthe
decide
Prepared:
Know
the
facts
ofcalibrated
your
law.
Goal:arguments
Know
what
you case
want.
Flexible
–argument
Questions
are
opportunities
Respond:
toinopposing
counsel’s
points
and
to the
your
assertions
and
support
for
those
assertions
onBe
the
order
which
you
will
argue
your
issues
able to answer the judge’s questions and use the
exchange
between
opposing counsel and the court.
and
present
your
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 don’t 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 court’s questions.


Where are the potential weaknesses in
your argument?
In your opponent’s?
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 court’s
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.
Don’t 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 is—some 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 State’s
counsel should move to the podium.
The Basics (cont’d)
 Avoid distracting mannerisms.
 Listen carefully to the proceedings: to what opposing counsel is
arguing and to the court’s 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 (cont’d)
 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.