Presenting an oral argument to an appellate court can be an exciting experience. The oral argument also presents an opportunity to enhance your credibility with the bench, instill confidence in your argument, and improve your chances of success. Below are seven tips for presenting an effective oral argument.
Select the Best Issues
Effective oral argument begins with carefully selecting the issues and arguments to raise on appeal. As soon as you begin drafting your brief, you should already be thinking about the oral argument and asking yourself, “Am I prepared to defend this position at an oral argument?” If not, then it is best to move on to your stronger points that have a better chance of success. The conventional wisdom is that an appeal should rarely present more than three or four issues. As Judge Kethledge of the Sixth Circuit once wrote, “When a party comes to us with nine grounds for reversing the district court, that usually means there are none.” Fifth Third Mortg. Co. v. Chi. Title Ins. Co., 692 F.3d 507, 509 (6th Cir. 2012).
Understand the Goals of Oral Argument
It is important to approach oral argument with an understanding of what you intend to achieve. Four key objectives include:
-
- Demonstrating to the court that your position can withstand scrutiny,
- Responding to concerns from the bench about the ruling you are seeking,
- Clarifying any questions or confusion about the facts or law, and
- If you represent an appellee, responding to points made in the reply brief that may not have been otherwise addressed.
To this end, it is critical that you have a command of the facts and law, a full understanding your opponent’s argument, and the holding you are seeking. Particularly in Maine, it is not uncommon to be asked to articulate, in a single sentence, the holding you are requesting. Give this question some thought ahead of time so you can provide a succinct and persuasive answer.
Use the Uninterrupted Time Wisely
The Maine Law Court will give the attorneys each up to three minutes of uninterrupted time at the beginning of the argument.
The uninterrupted time is not an opportunity to rush through as much of your argument as possible. Instead, the uninterrupted time should be used to set the tone for the rest of the oral argument by stating the theme of your case, summarizing the most powerful aspects of your argument, and telling the Court the relief you are seeking. For example, an effective opening to an oral argument might sound like:
- “The appellant is asking you to adopt a rule that would eviscerate this Court’s precedent that . . .”
- “Left uncorrected, the trial court decision will have far reaching consequences, and mean that . . .”
- “Every defendant deserves a fair trial, and [client] was deprived of that when the State alerted the jury to [client’s] prior theft conviction.”
In a perfect world, this should take you less than the three minutes. If it does, the best course is to simply invite questions from the bench by stating something to the effect of, “And with that, I welcome any questions.”
Abandon the Outline
Oral argument is very different than an opening statement or closing argument. It is an interactive process that should flow as more of a conversation between you and the judges. An outline can be a helpful tool to help you prepare for oral argument, but the result of your preparation should be the ability to seamlessly flow from issue to issue in the case without guidance from an outline.
Listen to Other Arguments
Listening to other oral arguments can be a helpful preparation tool, especially if you have never argued before the Maine Law Court before. If your case turns on the application of another case that the Law Court has decided, you can order a copy of the oral argument of that case from the Clerk. The prior oral argument will frequently give you valuable insight into the issues the Justices might be interested in, the type of questions you might be asked, or points that may help your case. Likewise, if your case turns on the application of a holding by the U.S. Supreme Court, most of those oral arguments are available online. Again, these oral arguments will frequently provide valuable insight that you can use.
Create a Point / Counterpoint Chart
The heart of appellate advocacy is the ability to effectively answer questions from the bench. As such, it can be helpful to prepare a point/counterpoint chart before the argument. In the left-hand column, make a row for every argument or point that could be made in your opponent’s favor — even those your opponent did not raise. In the right-hand column, write out how you would respond to each one if you were asked about it. Once your chart is completed, you can incorporate this into your practice sessions. The point is not to memorize the answers, but to practice articulating concise and direct statements addressing the issues that are most likely to come up in the argument. This exercise also forces you to focus on the weaker aspects of your argument, which are likely to come up at the oral argument itself.
Answer Questions Directly
When asked a question, you should stop speaking and begin listening carefully. If you truly do not understand the question, it is fair to ask for clarification. A question will sometimes come as a hypothetical or appear to involve a scenario far afield from the issues in the case. The worst answer to one of these questions is, “Those aren’t our facts.” The point of the question is to explore by analogy how your interpretation of the law might apply in other contexts. When faced with a hypothetical, the better approach is to give a fair and concise answer, and then explain why the concerns implicated by the question do not apply to your situation.
