10/8/21, 6:24 PM Top 5 Tips for Effective Oral Argument — JDSA Law

Top 5 Tips for

Effective Oral
Argument
JU LY 12 , 2 0 19

You have written a persuasive

appellate brief. Months have passed
and your case is finally on for oral
argument. In the interim you have
H.
Lee been busy with other cases and the
Lewis day-to-day obligations of your law
practice, and you may think that re-
reading the briefs, skimming the
record on appeal, and writing out your
argument as a speech is all the
preparation you need to deliver a
winning presentation to the judges.
However, even if you are expecting a
“cold bench,” treating oral argument
as an afterthought is wasting an
important opportunity to convince the
court that your client should prevail,
especially if one or more judges is on
https://www.jdsalaw.com/blog/2019/07/12/top-5-tips-for-effective-oral-arguments 1/9
10/8/21, 6:24 PM Top 5 Tips for Effective Oral Argument — JDSA Law

the fence. From thoughtful

preparation before the argument to a
confident, respectful presentation to
the court, here are my top five tips for
effective oral argument.

KNOW THE CASE

L AW A N D T H E R E C O R D

Before you step into the courtroom,

you must know the facts, the law, and
your arguments, and you must know
them COLD. This will give you
confidence, which is especially helpful
if you don’t have a lot of experience
with oral argument or are prone to
nerves. More important, having a
solid grasp of the material will free
you up to really listen to the judges’
questions and to have a meaningful
discussion of the issues in your case.
An open mind is key to a successful
oral argument.

Don’t forget to shepardize the relevant

cases to be sure that between the time
you submitted briefs and the date of
your argument there have been no
changes in the law you are relying on.
If there has been a favorable new case,
be sure to bring hard copies for each
of the judges on the panel, as well as
https://www.jdsalaw.com/blog/2019/07/12/top-5-tips-for-effective-oral-arguments 2/9
10/8/21, 6:24 PM
jTop 5gTips for EffectivepOral Argument
, — JDSA Law

your opposing counsel.

“The goal is to
have a

conversation
with the judges.”

P R E PA R E A N O U T L I N E , N O T A
SPEECH

While it may be tempting to write out

your argument word-for-word, the
reality of oral argument, especially
with a hot bench, is that the judges are
likely to take the argument in an
entirely different direction than is set
forth in your notes. You do not want
to be shuffling papers in a desperate
attempt to find an answer to the
court’s inquiry. Rigid adherence to an
outline will likely result in an
ineffective, awkward presentation.
The goal is to have a conversation
with the judges. Do not try to cover all
of the issues in the case; highlight
those that are crucial to your client’s
success.

The best approach is to prepare and

https://www.jdsalaw.com/blog/2019/07/12/top-5-tips-for-effective-oral-arguments 3/9
10/8/21, 6:24 PM Top 5 Tips for Effective Oral Argument — JDSA Law

memorize a short introduction, which

tells the judges what you asking for on
behalf of your client and why you are
entitled to it. Provide a roadmap to
your argument. That said, be
prepared for the possibility that the
judges may start to pepper you with

questions even before you get through

your introduction.

Of course you may get a cold bench in

which the judges do not ask a single
question. If that happens, you must
be prepared to give your argument as
a speech. However, do not simply
deliver a re-hashing of your brief.
Take the opportunity to highlight your
strongest arguments and to tell a
story. Weave into your argument the
idea that you are not only right on the
law but are also seeking a just result.
Although focused on the legal
analysis, the judges are also attuned to
fairness considerations and may be
persuaded by them in a close case.

PRACTICE, PRACTICE, PRACTICE

Whether it is in front of a mirror, your

spouse, or, even better, as a moot
court exercise with your colleagues,
you should practice giving your
argument. Brainstorm potential
https://www.jdsalaw.com/blog/2019/07/12/top-5-tips-for-effective-oral-arguments 4/9
10/8/21, 6:24 PM Top 5 Tips for Effective Oral Argument — JDSA Law

questions. Having briefed the case,

you should know exactly where your
weaknesses lie. Be prepared for the
judges to go directly to the areas you
would prefer to avoid, and be ready
with a substantive response. Answer
the question as directly as possible,

with as much qualification as you

need to shift the court’s focus back to
your position.

Expect the judges to ask you to do any

or all of the following during
argument:

• Address hypotheticals

• Concede obvious points

• Distinguish cases

• Respond to intricate statutory or

contract construction inquires

• Discuss broad public policy

issues

• Respond to questions that seem

out of left field

You do not want to be surprised

during oral argument. Thorough
preparation will allow you to respond
to anything the judges throw at you,
while enabling you to transition easily
between the court’s inquiries and the
points you want to make during
https://www.jdsalaw.com/blog/2019/07/12/top-5-tips-for-effective-oral-arguments 5/9
10/8/21, 6:24 PM Top 5 Tips for Effective Oral Argument — JDSA Law

argument.

BE
RESPECTFUL
OF THE
JUDGES
THROUGHOUT
YO U R A R G U M E N T

Always refer to the judges as “your

Honor” or “Justice/Judge ______.”
Never interrupt or speak over them;
never ask them questions, except to
clarify one of the court’s inquires.
Take your time in responding to
questions; it is okay to pause briefly to
collect your thoughts. If your allotted
time has expired, either stop speaking
or request permission from the court
to continue speaking. Be sure to end
your argument with a clear, concise
statement about the specific relief you
want and why you are entitled to it.

Be professional toward your adversary

as well. You will lose points with the
court for personal attacks on opposing
counsel or their arguments.

RESEARCH THE JUDGES ON

YO U R PA N E L

If you know the names of the

particular judges who will be hearing
your case, it behooves you to research
their backgrounds as well as their
https://www.jdsalaw.com/blog/2019/07/12/top-5-tips-for-effective-oral-arguments 6/9
10/8/21, 6:24 PM Top 5 Tips for Effective Oral Argument — JDSA Law
their backgrounds, as well as their
jurisprudence. What kind of law did
they practice before taking the bench?
Do they have political leanings that
may inform their position? Have they
written opinions on cases that are
similar to yours? You will surely get
the court’s attention if you support an
argument with a reference to an
opinion of one of the presiding judges
on the very issue.

Keep in mind that you should always

look the judges in the eye during oral
argument. It really helps to know as
much as you can about the people you
are talking to and how they are
reacting to what you are saying.

HOW I CAN HELP

If you are contemplating an appeal

following a loss at trial or on a
dispositive motion, or need assistance
preparing a strong reply brief, I
welcome you to contact me. I have
extensive experience handling appeals
in state and federal courts throughout
Washington State.

Email H. Lee Lewis or call (509) 662-

3685 for an appellate consultation.

The information contained in this blog

post is provided for informational
https://www.jdsalaw.com/blog/2019/07/12/top-5-tips-for-effective-oral-arguments 7/9
10/8/21, 6:24 PM Top 5 Tips for Effective Oral Argument — JDSA Law

purposes only and should not be

construed as legal advice on any
matter.

PREVIOUS

OBESITY: NOW A PROTECTED

IMPAIRMENT PURSUANT TO
WASHINGTON ANTI-DISCRIMINATION
LAW
E MP L OYME N T & L A B O R

NEXT

TO REPLY OR NOT TO REPLY:

CONSIDERATIONS ON APPEAL
A P P E L L A T E A T T O R N E Y, H L E E L E W I S , H I R I N G A P P E L L A T E

AT T OR N E Y

2600 NEWSLETTER
SIGNUP
Chester
Kimm Rd.

Wenatchee,

https://www.jdsalaw.com/blog/2019/07/12/top-5-tips-for-effective-oral-arguments 8/9
10/8/21, 6:24 PM Top 5 Tips for Effective Oral Argument — JDSA Law

WA 98801

C O N TA C T
(509) 662- US

3685

S E R V I N G WA S H I N G T O N ,
OREGON, CALIFORNIA AND
ALASKA

EMPLOYEE LOGIN TERMS & CONDITIONS

CLIENT LOGIN

Copyright © 2021 Jeffers, Danielson,

Sonn & Aylward, P.S.

https://www.jdsalaw.com/blog/2019/07/12/top-5-tips-for-effective-oral-arguments 9/9