O RAL A RGUMENT POINTERS

T HREE GOALS AT O RAL A RGUMENT Get the judges interested in your case and motivated to rule in your favor. Focus on the few aspects of your cases that are most determinative. Fundamental one or two issues; Most prominent facts in YOUR story; Most compelling policy determinations. Access the judges thinking. Discover their doubts about your theory so that you can clear up any confusion.

S TRUCTURE OF AN ORAL ARGUMENT Introduce yourself and the case. Summarize the clients story and identify the core issues Make a legal argument for each point. Conclude.

I NTRODUCTION Good afternoon, Your Honors. I am Allison Kort, representing Janice Simms in this case. We ask this Honorable Court to affirm the judgment below.

S UMMARIZE THE STORY Identify the core issues You can either: use the issues to start the story, or start the story first and identify the issues afterward as a bridge to legal argument Focus on the essential facts (dont let the judges let lost in marginal detailsie the facts during Simms employment) The statement of facts is more often than not the argument itself. Mention the facts that hurt you, but minimize their effects, just as you did when you wrote your statement of facts.

L EGAL A RGUMENT Tell the Court how many legal issues you will address and what they are. Go through one issue at a time.

I N G ENERAL, I F YOU ARE THE APPELLANT You may reserve a minute or two for rebuttal by saying so after you say the introductory sentences. After the respondent has argued, you can use the time to reply. Dont reiterate arguments you already made or raise new arguments. ONLY use rebuttal to correct significantly inaccurate or misleading statements made by the respondent, and only one or two. If theres no need for rebuttal, you can waive it.

I F YOU ARE THE R ESPONDENT : Listen to the appellants argument and respond to the appellants contentions during your argument. If the appellant surprises you during oral argument by saying something new that might hurt, you need to neutralize it on the spot when its your chance to speak.

H OT BENCH V. C OLD B ENCH Hot Bench: Judge may ask so many questions that your time runs out. When the presiding judge says thank you, counselor, you are finished. Conclude in one short sentence asking for the relief you seek. If youre in the middle of answering a question when your time runs out, ask for permission to finish the answer. If you finish before your time expires, conclude, pause to see if they will ask more questions, and sit down.

C OLD B ENCH Often HARDER than a hot bench, because you have to give a soliloquy on your case. Present your argument: Summarize the relief you seek. Argue why the court should hold in your favor. Conclude.

Q UESTIONS FROM THE BENCH They wont all be challenging your position. Neutral : requests for information. Concerned : how a particular problem can be resolved. Friendly : ask you to focus on an aspect of your case that the judge believes to be particularly persuasive. Prompting : what youre discussing can be dispensed with in favor of something else the court cares about more.

H OW TO ANSWER QUESTIONS Listen to the entire question carefully. Dont be afraid to pause for a moment to think. (One way to think while not answering is to say Thank you for that question, Your Honor. Also, if you pause, it wont be nearly as long as you think it might be. Anything is better than um or you know.) Dont leap to assumptions about a judges thoughts. The judge might be arguing with you, or might be wanting to give you a chance to state your argument out of a sense of fairness. Answer the question immediately. Dont say youll get there when you address that point in your argument.

H OW TO A NSWER Q UESTIONS Answer the question youve been asked, not one you would rather have been asked. Dont dance around the issue. Show the judge why the problem he might be posing should not present a decision in your favor. Give a realistic counterargument to a point of weakness that a judge addresses. What if you dont know the answer to the question? Tell the judge you cant answer. Dont fake it. The judge can tell.

B UILDING A BRIDGE During the answer, think about building a bridge to the next point in your argument. Redirect the argument back to your theory so that you can show the court how your theory as a whole, satisfies the concerns raised from the bench.

D ELIVERY AND S TYLE Respectful intellectual equalitya conversation with the court. Try not to look scared/deer in the headlights. Make eye contact. Look only at your notes to remind yourself of the next subject for discussion. Speak loudly enough that the judges dont have to strain to hear you. Avoid lots of detail when discussing cases and statutes. Focus on the big picturethe few determinative facts and the few determinative cases. Avoid unnecessary movement. Dont shuffle feet or papers, avoid pointing or talking with your hands. Dont be obsequious, but be respectful. When your adversary argues, dont make facial expressions, but sit there and listen. You may write down notes that you will need to help you respond in your own argument.

H OW TO PREPARE FOR ORAL ARGUMENT Prepare two versions: One version with material you MUST argue (would take about 40% of the time youre allowed). The other version expands on the first (in case you have a cold bench). Prepare notes: the fewer the better. Whatever works for you is what you should do, but heres what Ive found to helpful in oral argument: Glue four pieces of paper to a folder so that you only have a single paper with you at the podium. On the outside: list the subjects you will cover. If you come up with great phrasing for a theme, write that down. On the inside of the folder: on the left side: outline in detail the arguments that you MUST make; on the right side, outline more expansive version if you have a cold bench. On the outside of the folder, make a list key cases you want to mention. every weakness in your case and every question that you might ask if you were a judge. What to take with you to the podium: Your folder Your brief and any exhibits that you would like to cite A pen (but dont play with it)