Oral Argument Tips

Dominating Your Oral Argument Tips

Top Ten Pieces of Advice*

10. Know Your Audience – WWho are you trying to persuade? In 1L oral arguments and Moot Court, it will be a?jJudge or a panel of judges. jury? Research their background as much as possible using the internet and other lawyers who have appeared in that courtroom. Sometimes judges may not have law clerks and will not be well versed in a particular area. So you will have to teach them If the law is in your favor, argue the law. If the law is not in your favor, focus on the competing policy.Sometimes your policy argument is going to come from logic, pragmatism, or economics. Other times, the policy is "right and wrong", which is all about emotion. If everything else is equal, appeal to high principles like "justice," "liberty," or "dignity". Judges are lawyers, but they're also human beings.[*]

9. Write a Solid Brief – A strong oral argument starts with a solid foundation embodied in your written brief. Most arguments are won before the litigator even speaks a word in the courtroom. When writing your brief, keep in mind that jJudges don’t have much time. They have to read fast, so make use good headings, paragraph often, and write short, eloquent, powerful sentences. Write your arguments and make your case first, then put in the case law. Things that will dilute the persuasiveness of your writing:

1. Exaggerating or Misstating the Record or Precedent - Write accurately, honestly and don’t exaggerate. Developing credibility will pay dividends come judgment time.

2. Neglecting toConcedeing Weak Points – Don’t leaveout facts or counterarguments that cut against your case. In fact, you are legally obligated to reveal negative authority to the court. Concede the strength of your opponent’s facts/arguments, but be sure to discuss why your case is the strongest.concede your weaker factsdoes not compromise your argument. It makes you more credible. You can effectively do so byThe best presentation method is positive-negative-positive. (1) Start with your case; (2) Discuss negative facts/authority; (3) Finish strong with your case again. This will only make your case stronger..

3. Clichés - Write your own original sentences and don’t rely on trite clichés. Avoid boilerplate formulaic writing that says nothing new, informative, or interesting.

4. Grammatical Errors - Rearrange sentences and paragraphs and edit your work a dozen times.

5. Ad Hominem Attacks and Overly Emotional Language - Angry briefs are a distraction, so is language that is too emotional, ugly, and hateful. . Save your passion for the oral argument.

8. Make Your Case Arguments Clear –The oThe oral argument is a chance for you to make your argument more clearly, concisely, and forcefullymake the judge want to rule in your favor. After introducing yourself, bBegin with a clear one-linee opening that lets the judge know what the case is about (in language that is favorable to your side). Quickly After the issue statement, identify the relief you are asking for and introduce yourthen give the judges aclear and concise roadmap of your arguments– (e.g. “Appellant seeks reversal of the district court’s granting of summary judgment because: “First… Second… FinallyThird…”). Each issue in your roadmap should be presented in a sentence or less so the judge can readily understand it and know what you are going to be talking about.Identify your central argument points and the relief you are asking the court for (e.g. “we ask this court to reverse the decision below”). If you are the Respondent, consider beginning by c) highlighting issues with moving party's argument (I.e. point out if they have misstated the law or fact”). This introduction should make up no more than three to five sentences. You should not recount the facts in the record unless they are essential in making your case (do so sparingly). For the core of your oral argument, pPresent your strongest arguments first!Most courts will let you go 30 seconds. Some judges will jump in before you can even get a "may it please the court" out. Your roadmap should be 30 seconds long. If you can't make your case clear in 30, that's a sign that you don't really understand your case. Keep presenting your strongest points, as you do not have time to discuss the wishy-washy weak points (unless driven there by the judge’s questions). Signpost your argument, using transitions (e.g. “This leads us to the fourth prong of the test…”).The closing should be short – approx. 30 seconds. Reiterate the relief you are seeking and hammer home your strongest points. Remember: your first and last sentences are the most important. Make your best points then.

7. Get to the Point – Cut to the chase right away and focus on the real issues. State your conclusion from the get go – you need to tell the judge what you want to accomplish and what core arguments you base your conclusion on within the first few sentences you speak.Do not waste time recounting facts. As soon as you’ve given the court your roadmap, move directly to the first issue you listed and begin presenting your argument.The last thing you want is for a judge to question you on an incidental side note you brought up for fifteen minutes and have to steer the panel back to what you really need to talk about.

6. Paint a Picture – Be a good storyteller. Illustrate yourtheory of the case creatively and concisely. If you can make the judge see the case the way you do, he/she will be more likely to rule in your favor. Bring in cases effectively - when they are necessary to your argument. But tell an interesting story to make your complex case easier to understand; make issues things sound simple and clear.If you spend your time just rattling off the law, the judge may tune you out and you will have wasted your time.

5. Be Ready to Answer Questions Right Away – A “hot bench” will jump right in within the first couple of sentences or even words of your argument! When the judge starts speaking, stop immediately and listen. There are 6general types of questions: Precedential (e.g. analysis of past opinions), Forecasting (e.g. contemplating how your argument would affect different situations in the future), Hypothetical (e.g. asking you to apply your argument to a different scenario), Factual (e.g. Clarifying on Record), Softballs (e.g. restate your strong points in order to convince another panel judge who is still skeptical of your position), and Intentionally Misleading (e.g. trying to get a concession). Don’t answer until the judge is done asking. Begin every answer with “Yes, your honor” or “No, your honor” as much as possible. If you cannot understand the question, you can ask the judge to clarify. If a judge tries to push you into a corner so as to make a concession, stick to your guns and keep rephrasing and repeating your position. For example, the Judge cites case law and asks you, "counsel, isn’t it clear that opposing counselis right about this?" Be prepared to correct the bench. You don’t want to be led down a path to concede something you don’t want to concede. Even if they start calling you stupid and saying things like "didn’t you understand this case? How can that possibly be so," maintain deference and composure.Be careful about

A “cold bench”is a different challenge altogether. If the bench is going to sit there like a silent jury, you will have to deliver your full argument like a prepared speech until they start asking questions or your time expires.If you concede one thing, it can kill your argument then or at a higher level. Concessions on weaker points should have already been made in your brief and you should be ready to show the judge that your affirmative points are backed up. If a case is cited you don’t know about, just say you are not familiar and restate your argument. It is crucial to stay confident and convinced that your position is the correct one if you hope to win the judge’s ruling.

4.Roundtable DialogueConversation is Good – Most judges are herewant to have a conversation with you, not have you give them a lecture. Be professional, but personable in exchanging eloquent dialogue with them. Show poise and grace, and be calm and confident in your answers. The smoothest thing you can do is take a question from the bench and fluidly relate it back to your message in the outline (i.e., “Yes, your honor, and that is why Appellants argue . . .”). In a hot bench, you might find yourself being lectured by one or more judges and even judges who are fighting amongst themselves. Stand there and wait until the court is done letting off steam. If they throw out multiple questions at once, ask which one they would like answered first.

3. Bring Concise Materials – Leave your written brief in your briefcase. Prepare a folder or portfolio containing the minimum amount of notes you will need to refer to. The portfolio should contain no more than 2 pages side by side. First page: outline of your entire briefmain points. Useful especially when you have a “cold bench,” you will have things to talk about. Second page: Intro and Conclusion. Begin with "may it please the court,“ your name, clients’ name, and a brief statement of what you are looking to get. Conclusion should be a catchphrase (theory of the case) that you want the judge to have in his mind. This is your message/theory of the case.You will most likely have time to only bring up your best points; don’t bring in arguments that are wishy-washy Underneathsec, have cases, points, and answers to potential questions tabbed for a hot bench. Make sure you use a type size you're able to read at a glance. Though, it is best not to look down at this stuff at all.

2. Preparation! Preparation! Preparation!– It all comes down to preparation. You have to know the record, case law, andstrong points, weak points, and all counterarguments. Anticipate all questions that you might be asked. Memorize the intro and conclusion. If you are the most educated person in theat room, then you will bemu confident and sound convincing. Practice in front of someone so you are completely comfortableywithaboutall aspects of the case. Ask that person to be as critical as possible so you can get the most truthful feedback possible. Remember, judges are most impressed by counsel can look them in the eyes the whole time and speak confidently.That way you can come across a much more fluid manner and won’t have to keep looking at your notes. Practice giving your argument without notes.

1. Confidence – is huge. Feeling good begins with looking good. But you aren’t going to a night lounge, you are going to court in whichYou will likely be confronted by old fashionedold-fashioned judges. You don’t have to wear a dark suit. Looking sharp, modest, and likeable may pave the way towards winning a judgment. Be aware that confidence may easilyturn into arrogance or cockiness, and both are turnoffs. It’s not so muchalways what you say; it’s often how you say it. Stay aware of your energy level.Slow it down, speak up, and articulate your points.Be minimalistic, calculated in your answers. High impact, analytic answers are the most memorable ones.

[*] For more on persuading judges, we recommend two books: Legal Writing in Plain Englishby Bryan Gardner, and Making Your Case by Bryan Gardner and Hon. Antonin Scalia.