Effective Oral Advocacy

June 6, 2017 | General Liability

Preparing for and delivering a winning oral argument is a skill innate to some, but to most others, it is honed by years of practice and experience. Whether arguing an appeal or motion for summary judgment in a lower court setting, this guideline is intended to provide young lawyers with basic rules for effective and persuasive arguments.

Be prepared.  There is no substitute for thorough preparation. Facts of the case, issues to be decided and legal analysis must be committed to memory. You must be able to recite case law referred to in your written materials including the facts of each case and its holding. Be prepared to address opposing counsel’s arguments and authorities. Anticipate questions the court will ask and prepare your responses.

Focus on key issues.  Few things are worse than directionless and protracted arguments.  It is important to keep focus on the main points—your strongest arguments that establish, beyond any doubt, that your client should win. One helpful method of keeping focus on your key points is to prepare a written decision in your favor.  What issues and facts determined the case? What legal analysis was used?  That should guide your efforts. Chief Justice John G. Roberts Jr. once said “if you can’t explain what’s this case about and why you should win, you’ve got to go back and practice it again. You’re too immersed in it, you’re too much at the level of jargon, or you don’t understand it.” Interview with John G. Roberts Jr. (Mar. 2, 2007), in 13 The Scribes Journal of Legal Writing at 20 (Bryan A. Garner et. al. eds., 2010).

Practice your argument.  Your argument should be rehearsed aloud, ad nauseam. Practice once in front of a colleague and again before a non-lawyer. If you are not able to do this, videotape your rehearsed argument, watch it and critique yourself.

Prepare a “Talking Points” Outline.  Do not rely on large comprehensive outlines of all facts, issues and law. Instead, create a brief outline that contains key issues and main talking points.  Only use this brief outline in the event of an emergency.  Glance at it if you get flustered and need a memory-jogger.  Because you have your argument memorized, it is not necessary to bring a full outline as it will only distract you from the key issues that need to be addressed. Moreover, the court may focus on an issue or ask a question of something that is not contained within your comprehensive outline. Learn to be flexible. The dynamics of oral argument do not allow for rigid thinking.

Use visual aids, sometimes.  If allowed (always check the rules) and it will assist the court in deciding an issue in your favor, demonstrative evidence such as maps, photographs, drawings and graphs can be an invaluable tool. The visual aid must be integrated with your argument, not distract from it.

Know your audience.  If you have never appeared in front of the judge or panel of judges who will hear your argument, it is important to find out any special rules and procedures that must be followed on the date of argument. It will also prove helpful to find out the judges’ propensities. Do they ask a lot of questions? Are they typically familiar with written materials beforehand?  Knowing these answers will assist in preparing for the most effective oral argument and eliminate unwelcome surprises. If possible, sit in their courtroom before your argument date and watch other cases.

Be respectful.  Fighting with your adversary or worse yet—the judge—does not contribute to effective oral advocacy.  It is a distraction from the focus of your argument and the issues to be decided. Similarly, using rude or disrespectful language to attack your adversary is not helpful. Stick to the issues. Cite to the record and explain why your adversary’s statements of fact or law are incorrect. Then discuss why you win.

Answer questions directly and honestly. Questions are usually asked to resolve gray areas of fact and law. Sometimes questions are asked to hint on how the court intends to decide an issue or to persuade another justice on the panel. Providing a direct and honest response is essential.  Do not skirt a question. It will cause frustration and hurt your credibility. Answer yes or no if possible then explain why, in view of your response, you still win.

Know when to concede a point.  You will be asked about evidence and facts that are not in your client’s favor. Keep credibility intact by acknowledging the weakness in your case and immediately repudiate it with other facts, evidence or applicable law.

Demeanor counts.  The way you present yourself in court is an integral component of oral advocacy. Speak loudly and clearly. Be confident and resolute. Make direct eye contact. If your adversary is speaking, do not shake your head, make sounds or facial gestures. If the court poses a question to you, stop talking immediately and respond. It is okay to pause to think of your response. Create a lively discussion with the questioning judge but do not argue. Former Chief Judge for Florida’s Third District Court of Appeal David M. Gersten once wrote that “arguing gains enmity, whereas intelligent respectful discussion gains respect.” Judge David M. Gersten, Effective Brief Writing and Oral Argument: Gaining the Inside Track, 81 Fla. B.J. 26, 29 (2007).

Be confident.  Preparing for and participating in an oral argument can be daunting and nerve wracking, but it doesn’t have to be. With proper preparation, the experience can be exhilarating.  Like an athlete playing in a game seven match, this is the moment you worked so hard for. You know the materials inside and out and created a roadmap to success. You should be exuding confidence as you walk into the courthouse.

It can be helpful, especially for attorneys who are preparing for their first argument or appeal, to sit and listen to other cases, whether it is in a nearby appellate court or even online.  There are many resources available including the US Supreme Court: https://www.supremecourt.gov/oral_arguments/oral_arguments.aspx.

This article first appeared in The Whisper, the newsletter of DRI’s Young Lawyers Committee.
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