Better oral arguments now

Oral arguments before a panel of judges can intimidate even the most experienced lawyer. The Section of Litigation, in one of its recent podcasts available on its Web site, provides some ammunition to help lawyers prepare for arguing their cases.

1. Conduct mock oral arguments before judges unfamiliar with your case. While lawyers familiar with your case may ask tough questions, they’ll probably ask ones you’ve already considered. A judge unfamiliar with your case or even with your area of law may ask you to respond to something you hadn't anticipated. Conducting your mock argument in this way will help you prepare more thoroughly, including sharpening your ability to think quickly on your feet.

2. Don’t assume that your entire oral argument will be consumed by answering judges’ questions. Prepare an entire case in the event that there is dead air or no questions are forthcoming.

3. Judges are unlikely to be convinced that your criminal client is in fact innocent. By the time that you're done writing your brief, you may think it’s obvious to anyone and everyone that your client is innocent; judges may not see it that way.

4. Never assume that judges will care about the gross injustices of your case.

5. Even though it’s easy to be intimidated by the panel, treat the argument more like a conversation and less like a debate. While a lawyer is certainly trying to win his or her case, it’s better not to come across as sounding like you’re trying to score points or are being overly defensive. Keep the tone as if you’re speaking with equals.

6. If you don’t have a direct answer to a direct question, say so. Prepare yourself so that you will be able to answer every question, but in the event you can’t, don't waste the court's time. Offer to submit a supplemental briefing to answer the question.

7. Directly answer the judges' questions. Even if you don't agree that the question is on point, answer the question, then turn to the point you want to make.

8. Keep your outline or notes to one page. Any longer than that, and your outline appears more like a crutch than the outline it should be.

9. Be willing to adjust the angle or themes of your argument. A lawyer doesn’t simply need to repeat the material and points made in his or her brief.

To learn more tips for making winning oral arguments, listen to the full podcast here. The podcast is one of a series of practical practice tips and tactics offered by the section.

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