YOUR THREE GOALS AT ORAL
ARGUMENT
1. Engage the judges’ attention by getting
them interested in your case and
motivated to rule in your favor
2. Focus the judges’ attention on the few
aspects of your case that are most
determinative
a. Issues that are fundamental
b. Facts that are most prominent in
your theory
c. Rules for which a decision in your
favor would become precedent
d. Policy considerations that most
compel the result for which you
argue
3. You want access to the court’s thinking.
Discover each doubt the judges have
about your theory and every confusion
they entertain. Learn which issues are
most important.
a. The only way to get that access is
through the questions you’re
asked when the judges interrupt
you
b. Go to court for the express
purpose of being interrupted
because the most effective way to
persuade the judges is through
your answers to the questions.
STRUCTURE OF AN ORAL ARGUMENT
1. Nature of the case
2. The most essential facts
3. The procedural history
4. The issue before the court before the
court
 Statement of the facts is not merely a
part of the argument, it is more often
than not the argument itself
 If you represent the appellee, your
opening should be designed to show the
court vividly how your theory differs from
the appellant’s
 The body begins most effectively with a
statement of the rule or rules on which
your conclusion rests
 If your time has expired, conclude with a
brief sentence in which you specify the
relief you seek
 If you’re in the midst of answering a
question when your time runs out, ask
for permission to finish the answer and
finish quickly and consely.
 If the judges continue to ask you
questions after your time expires,
answer them fully.
 If you complete your argument before
your time expires, conclude anyway,
pause to see whether you’ll be asked
further questions and if not, sit down.
 Always signal your intent to finish by
using an introductory phrase such as “in
conclusion”.
 Rebuttal should be used to correct
significantly inaccurate or misleadingly
incomplete statements made by the
appellee, nd preferably not more than
one or two of those.
 If there’s no need for rebuttal, an
appeallant makes a confident
impression by waiving it.
QUESTIONS FROM THE BENCH
 When you hear a question, listen to it
carefully, and don’t be afraid to pause
for a moment to think before answering.
 Never interrupt a question.
 Try to figure out the question’s purpose
and exactly what’s troubling the judge.
 Craft your answer to satisfy the
skepticism or curiosity implied by the
question.
 Don’t say to little or too much.
 It’s a mistake to give a one sentence
reply a question concerning the crux of
the case
 It’s also a mistake to spend three
minutes resolving a straightforward
question
 Always answer the question on the
spot. Don’t promise to get back to it.
 If a judge asks you to discuss an entire
issue earlier than you had planned, do it
and rearrange the order of your
presentation to accommodate the
judge’s needs.
 In answering, state your conclusion
first and your reasoning second.
 The only way you can persuade is by
facing directly the problems raised by
the question and by showing the judge
why those problems should not prevent
a decision in your favor.
 Hedging and lack of candor harm your
credibility.
 An aura of honesty and forthrightness
will make the arguments more
persuasive.
 If the question disrupts your planned
argument, return to your argument at a
point that’s logically related to the
answer.
 If the answer covers material that you
hadn’t planned to speak about, use the
answer to lead back to your planned
argument.
 Bridge-building helps you redirect the
argument back to your theory of the
appeal.
 Controlled flexibility: a relaxed
resilience allowing one to respond to a
judge’s question, coupled with a n
internal gyro compass enabling one to
return gracefully to a charted course.
o You’ll be better able to manage
questions if you develop such.
 If you are asked a question to which you
don’t know the answer, the best thing to
say is exactly that.
 If you once knew the answer, it is better
to say “I’m sorry, Your Honor, but I don’t
recall.”
 If you think you understand the question
but aren’t certain, say that in your
answer so the judge can help you out in
case.
 If you plainly don’t understand the
question, ask for clarification.
DELIVERY, AFFECT, AND STYLE
 Most effective way to present arguments
is in a tone of respectful intellectual
equality
 The judges’ need to decide the case
causes them to look to you for
intellectual leadership
 What works best is a conversation in
which you take the initiative, talking
with the judges—not at them.
If you do the following, you can create a
persuasive presence that helps you engage
the bench:
1. Look straight at the judges
2. Stand up straight and don’t distract the
court with restless or anxious movement
3. Speak loudly enough that the judges
don’t have to strain to hear you.
4. Use the tone and volume of your voice
to emphasize the more important things
you say.
5. Communicate tenacity and what one
judge has called “discipline
earnestness”: a communicated sense
of conviction that pushes a case to the
limits of its strength but not beyond.
6. Unless asked, avoid multitudes of detail
in discussing authority
7. Know your record thoroughly, use it to
its full advantage and don’t discuss
“facts” outside the record.
FORMALITIES AND CUSTOMS OF THE
COURTROOM
 Dress not merely for business, but in
conservative clothing that conveys the
impression that you’re a careful and
reliable professional.
 The dignity of the occasion will be
demeaned if you speak in slang,
emotional rhetoric, or terms that
 unnecessarily personalize the lawyers or
judges.
 Refer to your adversary’s arguments as
the party’s, rather than the lawyer’s.
 Judges are satisfied with respect; they
are offended by obsequiousness.
 While your adversary argues, listen
attentively and without facial
expressions that could convey your
opinion.
 Don’t interrupt your adversary’s
argument.

PREPARATION FOR ORAL ARGUMENT

 Prepare two versions of the same
presentation
o One should include the material
that you must argue or the core of
your case
o The other is an expanded
development of the first. Includes
the first version as well as
supplemental material that makes
the core more persuasive.
 Better off with the fewest notes because
it is needed only to remind you of the
subjects you intend to cover and a few
key phrases that you intend to use.
 If you come up with an excellent
phrasing for a difficult concept, write
down those few words to remind
yourself to use them.
 Some advocates take to notecards with
synopses of the record and of the major
relevant cases.
 Plan your argument by weaving
together:
o Policy
o Facts
o Controlling rules
 Show how policy and the facts compel
your conclusion, while the technical law
can be used to justify it.