PREPARING AND DELIVERING ORAL
By Andrew L.
I. PURPOSES OF ORAL
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.
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
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
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
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
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
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
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
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.
(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
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.
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
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
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
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
17. Be well armed with the
material you may need.
(a) All briefs and
(b) Pertinent record
materials, legislative history, and important cases. If you plan to quote any
authority, have copies available for the judges if they
18. Tab important parts of
the transcript and the appendix. You don't want to lose time searching for a
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
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.
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
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
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.
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.
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
(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
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
(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
8. Don't bluff about cases
you havenít 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
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
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
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
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
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, * *
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
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
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
Copyright © 1999 Mayer,
Brown & Platt. This Mayer, Brown & Platt article provides information
and comments on legal issues and developments of interest to our clients and
friends. The foregoing is not a comprehensive treatment of the subject matter
covered and is not intended to provide legal advice. Readers should seek
specific legal advice before taking any action with respect to the matters