I. PURPOSES OF ORAL ARGUMENT.
To represent your client properly, you must understand the goals of oral argument from both sides of the bench. You can then tailor your arguments to meet these goals.
A. Judges' purposes.
Judges use oral argument to:1. Clarify issues. Judges rely on oral argument to help them pin down the issues they must decide, and to resolve any ancillary questions such as jurisdiction, standing, mootness, etc., that may not have been the subject of briefing but that could arise in resolving the appeal.
2. Clarify factual and legal points. Judges may ask you to substantiate factual claims by reference to the record or to explain confusing holdings and party positions below.
3. Clarify the scope of claims. Judges pose hypothetical questions to test the limits of the principles underlying your argument.
4. Examine the logic of claims. Judges will ask you to address seeming inconsistencies in your arguments.
5. Examine the practical impact of claims. Judges will question whether acceptance of your arguments could produce impractical, unduly burdensome, or nonsensical results.
6. Lobby for or against particular positions. Some judges use argument to explain their views and press them on their fellow judges.
B. Lawyer's purposes.
You should use oral argument to:1. Ensure that the judges understand and focus upon your claims. Only during oral argument can you meet the judges eye to eye, without any intervening screening from law clerk and without any distractions from the dozens of other cases on their dockets. Use this opportunity to persuade the judges to rule in your client's favor.
2. Correct misimpressions of fact or law that the judges may have about the case. Be alert to any indications that the judges are proceeding on erroneous assumptions of fact or law and take the opportunity to correct such errors.
3. Demonstrate the soundness of your position. Show the judges that your position hangs together under fire and can withstand the hypotheticals they pose.
4. Assuage the judges' concerns. Find out what troubles the judges and address those problems.
5. Impress the judges positively and memorably. Be candid, prepared, and helpful, and advocate reasonable positions. This will enhance your credibility with the judges and make them more receptive to your position.
C. Helpful reading materials.
To help you prepare for oral argument, read: Davis, The Argument of an Appeal; Jackson, Advocacy Before The Supreme Court; R. Stern & E. Gressman, Supreme Court Practice, Ch. 14; R. Stern, Appellate Practice In The United States, Ch. 8; Prettyman, Supreme Court Advocacy Winter 1978 Litigation Magazine (1978); F. Weiner, Briefing & Arguing Federal Appeals, Ch. VI.
II. DELIVERING THE ARGUMENT.
A. Substance
1. Introduction. Tell the judges in a couple of sentences how the case reached them, the type of case (e.g., bankruptcy, tax), your position, and what points you plan to cover.
2. Statement of facts. Spend little time in stating the facts unless there is an affirmative tactical goal in doing so (i.e., your case is particularly strong on the facts). The judges are usually familiar with the statement portion of your brief, and there is a real risk of becoming bogged down in factual minutiae and wasting valuable argument time.
3. Focus your argument. Limit yourself to at most three or four crucial points.
4. Keep your main points simple and hard hitting. Judges may miss subtle or rhetorical comments. Keep your points straightforward.
5. Using cases.
(a) Limit your case discussion. Many excellent arguments never refer to specific cases. Disquisitions on the holding of cases that the judges haven't read or aren't familiar with can be a real turn-off. Unless the interpretation of potentially controlling precedents is crucial in your case, it is usually more effective to leave analysis of cases to the briefs and devote the argument to conveying the logic and common sense of your position.
(b) Don't rely on noncontrolling case authorities. You may refer to the reasoning of inferior courts or courts in other jurisdictions, but don't expect the judges in your case to reach a certain result just because other courts have done so.
6. Using the record.
(a) Know the record. Be prepared to answer questions about relevant parts of the record.
(b) Stick to the record. Ordinarily, refrain from referring to matters outside of the record such as newspaper articles. However, if a judge asks you to go outside the record, you may do so.
B. Technique.
1. Maintain eye contact. Walk to the lectern and look at the judges. Then talk to the judges, not at them.
2. Have something in writing at the lectern. Have an outline or some list of important points to be made during the course of the argument. Without written help, you may ramble and overlook pivotal points.
3. Don't let unnecessary preparations delay your argument. Don't gulp water, shuffle papers, remove your watch, etc. Walk to the lectern, set down your watch and papers, wait for the presiding judge to recognize you, and then begin.
4. Stand upright and still, but don't be rigid. Stand, don't slouch. Stay close to the microphone. Don't wander around the courtroom.
5. Control your nonverbal communication. Be earnest, alert, and confident. Avoid distracting movements such as picking at your sleeve while a judge questions you. don't adopt combative positions such as crossing your arms.
6. Be courteous and respectful. The proper relationship to the judges is that of respectful equality. Don't be scornful or belligerent. At the same time, don't be timorous or overawed. In particular, don't buckle or concede a point just because an individual judge seems displeased with your position.
7. Enunciate clearly. Judges abhor mumbling and muttering. It may be useful to listen to your argument on a tape recorder in order to ensure that you can speak confidently and clearly.
8. Control your volume. Don't speak softly, but don't bellow. Vary your volume so you don't speak in a monotone.
9. Keep your cadence. Oral argument should move with a carefully regulated cadence. It is important to maintain a conversational tone. Avoid long pauses while you grope for your next point or look for a record cite. Equally important, do not race through an argument.
10. Address the judges correctly. Don't try to address a judge by name, unless you can do so correctly. If you address Judge Smith as Judge Jones, neither judge will be pleased.
11. Don't read to the judges. Reading from statutes, cases, or legislative history will bore the judges, even if it does not bore you. However, you may briefly quote pivotal language critical to your argument.
12. Avoid long sentences, numbers, and citations. Remember that oral and written communication are different. Keep your sentences simple and vivid.
13. Limit reliance on help from others at the counsel table. Conferring with co-counsel makes you look ill-prepared and should be done only in limited circumstances. Offer to submit a supplemental brief on a significant point that you cannot address adequately. But if you can't answer an important question and your co-counsel knows the answer, quickly consult him or her. Limit note passing with co-counsel. Passing notes distracts the judges. Pass notes only to obtain information, not to toss around ideas.
14. Remember the forum. If you are a trial lawyer, remember that appellate judges are not jurors and greatly resent being addressed as though they were. Avoid emotional rhetoric; instead, view oral argument as an intellectual exchange or debate.
15. Be prepared to modify your argument. Think of your argument as an accordion that expands or contracts based on the time available. The more the judges question you, the less time you have to present what you planned. Be ready to discard less important matters if time is running short.
16. Use the written format that works best for you. Experiment with different techniques during moot court sessions until you find the one you are most comfortable with. You might use an outline with key words and sentences. You may prefer to list key arguments on notecards. You may have a script with you, but do not read your argument. If you have a script, don't do more than glance at it to refresh your memory on key points. Remember that written and spoken communication use entirely different diction. A written argument will sound stilted unless great care is taken to use words and phrases appropriate to oral communication.
17. Be well armed with the material you may need.
(a) All briefs and appendices.
(b) Pertinent record materials, legislative history, and important cases. If you plan to quote any authority, have copies available for the judges if they request.
18. Tab important parts of the transcript and the appendix. You don't want to lose time searching for a reference.
19. Don't use distracting exhibits or physical evidence. You may lose several minutes of your precious time while the judges pass your exhibits around. Know that some judges see them as a stunt. If certain exhibits really will assist you, get the clerk's permission to copy and to distribute them to the judges before oral argument.
20. Managing your time. Keep track of your remaining time, so that you can cover your most important points. If you are the appellant, but sure to save time for rebuttal. End your argument when the red light signals that your time is up. Thank the judges and sit down. However, you may answer questions posed by the judges after your time is up.
C. Answering questions. By far the most important part of an oral argument is responding to the judges' questions. The purposes of the argument are communication and persuasion. Responding to what the judges have on their minds is much more valuable than repeating the points you have already made in your brief.
1. Preparing for questions. Read the record, briefs, and cited cases thoroughly. Read relevant law review articles and economic or similar studies. After doing this, review every submission in your brief and proposed oral argument from the point of view of a hostile or skeptical judge. Read your opponent's brief carefully and with an open mind to appreciate the points it makes that are potentially most troublesome for your position. Try to think of every difficult question that a judge might ask. Jot the questions down and know the best answers to them. To prepare for questions you may have missed, discuss your case with laypersons and other lawyers to see what questions they have. Ask fellow lawyers to act as judges in a moot court. They will raise questions you otherwise might miss.
2. Know how to respond to different types of questions. Bear in mind that judges ask different kinds of questions demanding different responses.
(a) Questions that go to the hear t of the case. Spend most of your time on these.
(b) Background questions. Answer quickly and accurately and then move on.
(c) Fencing or debating questions. Try to avoid being bogged down too long on peripheral points that a judge wants to bat back and forth. Give your best answer, then find a tactful way to return to your main point.
(d) Humorous questions or observations. Enjoy the remarks and then get back to business.
(e) Irrelevant questions. Even if you think the question is irrelevant, don't say so. Respond briefly, and then explain why your case presents a somewhat different issue.
(f) Hostile questions. Don't be unnerved or disappointed. Hostility may signal that the questioner is in the minority. Answer politely and firmly and then return to your argument.
3. Listen carefully to the questions. Make sure you understand them. You will frustrate and perhaps confuse the judges if you answer questions not posed.
4. Answer the questions directly. Whenever possible, begin your response with a yes or no, then provide an explanation, if one is needed. Don't beat around the bush. You don't have time. But if a question leads naturally to an important point you were going to make later in the argument, consider rearranging the argument to cover the point while you have the judges' attention.
5. Do answer the questions. Don't be so anxious to get back to your argument that you give back-of-the-hand answers to questions troubling the judges. The case will be decided on the basis of what is important to them, and their questions frequently signal the topics that require thorough consideration.
6. Don't evade the questions. Don't try to escape a question by explaining its unimportance, or arguing that your case differs from the hypothetical. Obviously, the judge believes the question matters, otherwise he or she would not ask it.
7. What to do when you can't answer a question.
(a) Factual questions. If someone at your counsel table knows the answer, ask that person. If not, tell the judges you can't answer. Occasionally, you may be forced to say "I regret that I cannot supply that information. However, I believe that X's testimony addresses that point. Ideally, no critical record fact will escape your recall.
(b) Legal questions. You cannot answer a legal or hypothetical question with I don't know. You should answer the question on the spot. You may say that you haven't considered that variant of your situation, but then state the relevant factors and answer as well as you can. If you don't follow the question, say so, and the judge will rephrase it.
8. Don't bluff about cases you haven’t read. If you get a point-blank question about an unfamiliar case, admit it, and ask the judge to refresh your memory. This should never happen with respect to a significant case if you prepare properly.
9. Don't postpone answers. Always answer immediately. Delaying your answer may irritate the judges. If you must postpone, answer briefly and promise to elaborate after you have laid a foundation for your answer. Then be sure that you do return to the point as promised.
10. Answering friendly questions that lead to incorrect conclusions. Accept the help, but politely correct the mistake: I would agree with your Honor's approach, but I think the main support in this situation comes from * * *.
11. Don't expect law school questions. The judges won't ask you to give the facts in the Drybones case. But you should know enough about the relevant cases to answer general factual questions.
12. Be flexible. During some arguments, you may need to hop from question to question quickly. During others, you may never stray from your planned presentation. In any case, be prepared to set aside your notes entirely and answer the questions, weaving in your affirmative points as you go.
13. What to do in a really hot argument in which you get nothing but questions. In general, you should welcome active questioning. But try not to let the argument break down into a series of unrelated responses or a cross examination in which the judges force you to concede point after point until your time is up. Focus on the main points that you want to convey no matter how intense the questioning. Weave those points into your argument.
14. What to do in a cold argument with few or no questions. Occasionally, judges ask few or no questions. Prepare an argument that you can present without supporting dialogue between you and the judges, leaving sufficient time for questions and answers. You don't have to use your entire time. Make your points and then signal the judges that you are about to finish: that will conclude my presentation, unless the court has further questions. If they have none, thank the judges and sit down. Judges will greatly appreciate your brevity.
15. Be careful with concessions. Be cautious in making concessions; the judges may use them against you in deciding the case. Of course, answer the questions honestly and candidly and don't extend your position beyond its reasonable limits so that it produces absurd results.
(a) Recognize the difference between factual and legal concessions. You must concede unfavorable facts, although you can then explain why your concessions don't destroy your case. Be extremely careful about legal concessions. Think through the implications before conceding any legal point. For example, a judge may ask you wouldn't you admit that your position should be rejected if * * *? Don't agree too readily. Where appropriate, say, that presents a different case, but I wouldn't concede that would produce a different result. The facts that would have to be weighed include * * *.
(b) Don't concede a point merely because a judge thinks you should. If a judge believes you should concede a point, but you do not, say I do acknowledge your Honor's point, but it does not dispose of the issues here * * *.
16. Answer carefully questions that test principles underlying your argument. The judges will question you on the scope of these underlying principles. Know the limits of your principles in advance. Every principle has its breaking point; every principle clashes with a contrary principle at some point. Avoid radical arguments that extend your principal too far. Instead, offer some neutral basis for distinguishing cases that you would not include within your principle. For example, if a judge asks would the Speech or Debate Clause immunize a physical assault during an emotional debate on the floor of the Senate? don't say, Yes. Instead, you could say the Speech or Debate Clause is directed to speech and debate, not assaultive physical conduct. Remember, you can't merely say that the hypothetical differs from your case because * * *. The judges know that. They want to know what principle separates your case from their troubling hypotheticals.
17. Beware the relentless judge. Sometimes a judge will not let go of a point. However, you must move on. Give your best answer and then politely but firmly steer the argument back on course.
18. What to do when the judges seem to be ignoring you. Don't be unnerved if they get up, turn chairs around, read, talk, etc., during your argument. In most instances, the judges are talking about your case. You may pause briefly to catch their attention. But usually you should plunge ahead and try to make your argument lively and interesting.
III. THE APPELLEE'S ARGUMENT.
A. Same general rules apply. Prepare notes and have your main points in mind. Make your affirmative case. Give the judges the emotional and intellectual basis for ruling in your client's favor.
B. Don't argue in a vacuum; be flexible. Annotate your outline as your opponent speaks. Note the main points that you want to add to your argument in light of your opponent's argument and the judges' comments. If an important exchange between the judges and your opponent goes to the heart of your case, you may wish to start with that.
C. Don't spend your time nattering about your opponent's every mistake. Rectify only your opponent's critical misstatements. If your opponent waffled or incorrectly answered a question on a significant point, pose and answer the question correctly: Judge Roberts asked * * *. My opponent said * * *. In fact, * * *.
IV. REBUTTAL.
A. Save time for rebuttal. Whether or not you end up using it, it is essential for opposing counsel to know that you have the opportunity to correct any misstatements of fact or law that may be made. This has a salutary restraining influence.
B. Never prepare in advance. You can't rebut what you haven't heard.
C. Limit your points. During your opponent's argument, select the two or three major points that you wish to rebut. Address those and no more.
D. Employ dispositive authority. Cite the authority that most effectively rebuts your opponent's position.
E. Do it well or not at all. Judges often are visibly impatient with rebuttal, so make it snappy and make it good.
F. Waiving rebuttal. If your opponent's argument did not impress the judges, simply stand up and confidently tell the judges that unless the Court has questions, we will waive rebuttal.