ADVOCACY PREPARATION

General tips
What is the best thing an oral advocate can
do?
"Be confident. Even great advocates aren't
perfect, and not every case is a winner, but
presenting your arguments with assurance and
speaking in a clear, forthright tone makes all the
difference."
"Be prepared for all levels of knowledge in a
judge. You never really know in advance if you
have a judge who glanced at the bench brief or a
judge who's spent a 30-year career practicing in
exactly the area of law you're discussing. Learn
to read a judge's comfort level with the material,
and adjust the detail and complexity of your
argument accordingly. Persuasion isn't always
the art of having the most details — it's about
knowing your audience and tailoring your
message."
"Lead with your strongest point rather than
building up to it. You should have an outline of
your argument and be ready to proceed if you
are not interrupted early on, but it's unlikely that
you will get through many of your remarks as
prepared. Accordingly, be sure to amplify the
most important aspect of the case at the start and
try to articulate the theme of your argument in
the first sentence or two."
"Be able to steer the conversation by smoothly
transitioning between questions and arguments.
Doing so also creates a convincing yet
conversational style that puts judges at ease."
"Where possible, weave into your argument the
idea that you are not only correct on the law, but
also seeking a just result. Although focused on
the legal analysis, the judges are attuned to
fairness considerations and can be persuaded by
them in a close case."
"When asked a question, answer it directly.
When possible start with a yes or no, but if the
short answer requires a qualification to protect
your client’s position, immediately follow the
yes or no with that qualification."
What is the biggest mistake oral advocates
make?
"Showing nerves."
"Being too formal. Even at the highest levels of
appellate advocacy, an oral argument is closer to
a conversation that an oration."
"Starting to give an answer before thinking
about what to say. Advocates often rush into
answering a question, fearing two seconds of
silence, and then flounder or reverse course as
they reformat their answers on the fly. It's
always better to take a beat to be sure you know
what you want to say before you start speaking."
"The most serious error at oral argument is not
listening carefully to the questions and thus
failing to address the concerns raised by the
judges."
"Making a concession (one is almost never
necessary, and you should be able to defend
your ground on all levels)."  
Preparation for your Argument
What is the best way to prepare for oral
arguments?
"Become comfortable with the record."
"Be able to articulate the standard of review
applicable to the questions presented, and
understand the appellate court's latitude with
respect to each issue. Anticipate jurisdictional
questions, and know the court's procedural
options for resolving the case."
"Think about the limiting principles that can
prevent unintended consequences of ruling in
your favor. The judges will likely ask questions
about the impact of your requested relief on
hypothetical future cases. Assuage concerns
about the proverbial slippery slope."
"Backstop your argument so that when it
becomes apparent that a judge disagrees with
your position about one point, you can say that
even if the court doesn't accept that premise,
you should still prevail, on some narrower
ground."
"Try to put yourself in the place of the judges
and think about but what questions they would
ask and work on short, clear and accurate
answers to all of them."
"Research, research, research. Then think about
how to explain the case and your arguments in a
compelling way."
"Rehearse, rehearse, rehearse. Practice out loud.
Get comfortable with the way your argument
sounds and with saying the names of the parties,
cases, and statutes. Get comfortable with the
language of the case, with the particulars, and it
will be easy to talk about them fluidly without
looking at your notes."
What does a successful oral advocate's
outline look like?
"Short! A few key words on different points and
maybe a phrase you want to repeat as theme of
the case."
"No more than two pages, with annotated points
in at least size 14 font. The outline should only
be there as a backup, and it should be very easy
to find the information you need."
"You won't be able to read your notes, so
include only a few, useful "trigger" words.
Ideally, you should know your case so well the
notes are superfluous."
How much of an argument should be
memorized?
"Memorize your introduction so that you can
make eye contact with the court. Memorize the
last paragraph so that your ending seems
planned, rather than an afterthought."
"Be aware of the questions you will likely be
asked. Although you will not be able to actually
memorize answers to these questions, you
should know in advance how you plan to
respond. Internalize the substance of those
responses, rather than memorizing the words, so
that you can shape your arguments to fit the
actual questions the judges ask."  
During the Argument
What is the most effective way to use the
cases or other provided material?
"Cite to the names of cases only if (1) the legal
rule is disputed and you are trying to convince
the court that your version of the rule is the right
one or (2) you are analogizing to a case to show
the court why it should rule for you."
"Know the record very well and be prepared to
answer every possible question about the facts
or the proceedings below. Except in response to
questions, though, oral argument is not the time
to recite the facts of the case."
"Cases are most persuasive when they directly
support your point or when they are strong
analogies to a point you are making."
"Remember that arguments are short and
spending too much time on citations will take
away from the substance of your argument. It's
great to look knowledgeable, but it's bad to look
showy."
"Make sure that you're aware of what they mean
and stand for and their relative chronological
order."
What should you do if you think your
competitor has a misstated a fact?
"Always be respectful of your opponent.
However, if he or she has misstated a material
fact, be sure to correct it and to do so in a way
that shows how the correct fact helps your
argument."
"You may correct them graciously. Say
something like: 'I believe my opponent
misspoke when discussing this point' or 'I would
just like to clarify a point from the record'."
What should you do if you make a mistake?
"Don't freak out. If it is an important point, take
a deep breath, clarify your point (walk it back if
possible), and don't let the judges see you
flustered."
"Don’t try to cover up the obvious with a lame
explanation or excuse. Forthrightly admit that
you said something wrong. For example, when I
said X I was wrong, the correct response would
have been Y."
How should you conclude?
"Short and powerful. No need for showy
theatrics. In one sentence, tell the court what
you want it to do and why it should do it."
"Often, an effective ending is a “bookend” to
your opening in which you pick up on a phrase
or theme you used in the opening."
"Ending shortly before your time expires leaves
a great impression."
How do you make the most of a rebuttal?
"Don't respond to all of your opponent’s points.
Just hit the biggest one or two on which his
argument rests. Leave the court with sense of
wanting to rule for your side and how they
should do that."
"Rebut your opponent only on important points
where (1) you were hurt and (2) you have the
ammunition to do something about it."
"Think big, but narrow. Don't go after a minute
detail or slipup by the opposing side, but don't
try to overview the whole round either. Figure
out what the one key issue is that the judge(s)
seem to care about the most, and give a clear,
straightforward reason why your side won that
issue."
What kind of feedback might a competitor
want to seek from a judge?
"What can you do better? What worked well?
What was convincing/unconvincing in the
argument?"
"Was there an effective argument I failed to
make?"