ORAL ARGUMENT:

Preparation, Practice, & Conversation

LARCII – Prof. O’Malley

https://forms.gle/Wm
CMLGQRquouMFQ
U8
LARC Agenda – final weeks

March 28 & 30: Oral Argument How-to

April 4 & 6: Practice Oral Argument
April 10th Week: NO CLASS, attend oral argum.
April 17th Week: Final Class
Tuesday, April 25: LARC exam on TWEN, 12-3
p.m.
 Why Oral Argument?

 Courts hear/allow oral arguments to:

 Gain a better/deeper understanding of the arguments in the
brief
 Ask questions about the strengths & weaknesses of the legal
& factual arguments
 Discuss policy implications of arguments
 Your goals as an advocate in an oral argument are to:
 Emphasize to the Court the legal, factual, and policy reasons
to grant the relief you have sought
 Help the Court to resolve any legal or factual “difficulties”
or barriers to finding your way
Oral Argument v. Written Brief
Oral Argument: LARC2
 Scheduled for 30 minutes per pair
 10 minutes total for each side
 Movant speaks first
 Non-movant follows
 Judges will give you feedback at the end
 Prepare a speech, but expect a conversation
 Three major components: Introduction,
Argument, Conclusion
1. Your Introduction

 Acknowledge the Court and opposing counsel;

introduce yourself and your client
“May it please the Court. I am [name] and I represent
[name of client], [the [litigation position] in this
matter…”
 Can mention your theme (“…this is a case about…”)
[optional]
 Identify the relief requested &
 Provide the judge a summary of arguments: a roadmap:
“…this Court should [grant/deny] the motion because…”
2. Your Argument:
The Largest Share of the Conversation

 Your analysis, built around 2-3 key arguments/points

 Generally begin with your strongest point, but be
prepared to answer questions on weakest points
 For each argument: state conclusion, then support it
with law and facts
 Focus on controlling legal principles, policy, and
equity
 Be flexible and prepared to adapt your argument –
you will get questions
3. Your Conclusion
 Remind your judges about the result you seek
and, if possible, why
 Prepare two conclusions: one longer, one
short
 Remind the judge of the result you seek, your
theme, and key points supporting your argument
 If you run out of time (or sense you are about to),
begin your short (1-2 sentence) conclusion
“For the foregoing reasons, [Def./U.S.] respectfully
requests…”
Tip: To Avoid Reading, Consider the Format of
Your Notes
Tip: To Avoid Reading, Consider the Format of
Your Notes…and PRACTICE!
How do I anticipate questions?

 Judges are concerned about:

 PRECEDENT – what do the binding cases say?
What is the rule?
 POLICY – do the cases talk about the reason for
the rule? Why would it make sense to rule in the
way you are asking the court to rule?
 POSSIBILITIES – if the court agrees with you,
what does that mean for the next case? What are
the key facts that you contend are driving the
outcome?
Common PRECEDENT questions

 What is the leading case supporting your

position?
 Has any case ever ruled the way you are

asking this Court to rule?

 If there is case law against you, how do

you distinguish it?

Common POLICY questions

 Why should the Court rule the way you

are asking?
 What is the benefit of ruling the way you

are asking the court to rule?

 Are there any difficulties created by ruling

the way you are asking the Court to rule?

Common POSSIBILITIES
questions

 You are contending X. What if the

fact were different – what would
be the outcome?
 Other hypotheticals…
Tips: Questions from the Bench

 When possible, always try to answer a question

directly (“Yes, Your Honor…” “No…”)
 The best approach is to answer the question first,
and offer the explanation later
 If you do that, the judge feels that his or her
question has been answered, and will likely be
more willing to listen to your explanation
 If you don’t understand the question, ask the Court
to repeat it
Tips: Structuring An Answer

 If your answer will have a complicated explanation,

give the court a roadmap to your answer
 This shows that you’re well prepared and in control
of your material, and gives the judges the sense that
they know where you’re going
 You won’t always get to give a full answer, but the
judge knows what you were going to say
Questions: Other Best Practices
 Immediately stop talking when a judge starts
asking a question & keep quiet until the judge
finishes
 THINK before you answer. It is OK to pause
to gather your thoughts.
 Avoid throat-clearing: “That’s a good question…”
– just pause and then answer directly
 Avoid “I believe…” or “I think…” – judge
cares about law and the facts, not what you
think
Questions: More Best Practices
 Prepare to recite facts. In case the judge requests a
recitation of the facts, prepare a 30-second persuasive
summary. Don’t offer this unless asked.
 Be candid if you are unfamiliar with a case the judge asks
you about. Then ask to get back to the court: “Your
Honor, I am not familiar with that case. If the court will
allow, I would like a chance to review it and submit a
supplemental memorandum responding to your question.”
 Turn questions into opportunities. For example, if judge
asks you for a distinguishable case, share that case and
describe it and then bring conversation back to an
analogous, supporting case.
Preparing for Questions

 Have a list of questions you

anticipate and how you intend to
answer them
 Prepare a model answer for each:

 Yes/No, Your Honor…explain…

 then transition back to your argument to
explain why you win
Transitioning back to your
argument
 After answering the question, go directly back into your argument.
 Don’t say: “Does that answer your question, your Honor?” or “May I
continue, your Honor?” – just do it
 Be flexible! You need to decide what to talk about next.
 If the judge interrupted you to talk about a different issue than you were
originally talking about, you might decide to give the rest of your
argument on that new issue before going back to what you were
originally talking about.
 If you go back to the original issue you were discussing, you may
need to politely re-orient the judge, e.g.,
 “Moreover, your Honor(s), as I previously mentioned, _____. “
 You could always return to a previous question the judge asked to
bring up something you forgot.
 “Your Honor, I’d like to return to your question about ___.”
Tips: When You Are Responding

 Same basic intro and structure as the movant

 When you’re waiting to speak, pay close attention
 Even if you have a prepared opening, something may
happen that requires you to respond to what happened
earlier in the argument
 Note that judges often like you to address what
happened that day, not what you thought would happen
 Clarify, amplify, distinguish: that’s your job!
 Flexibility is key!
Once you have your materials: PRACTICE

 Practice in front of a mirror

 Practice with family members

 Record & critique yourself

 Ask each other questions

 Caveat: You cannot practice with the

person you are arguing against and

you cannot practice with someone
who has already argued.
Speaking of practice…
 Next week: Come to class on Tuesday prepared to
present your “practice” oral argument, including:
 Your introduction
 Your conclusion (longer version)
 Your answers to 2 questions you anticipate that you might
be asked (think precedent, policy, or possibilities) – bring
on a notecard!
 Worth 20 professionalism points (prepared & present a
good faith effort as attorney & judge)
More Formalities
 Dress appropriately-
 Suit and Tie for the men

 Suit or conservative dress for the women

 Address the court when you begin with “May it

please the court, my name is>>> and I represent
>>>”
 Always address members of the panel as “Your
Honor”
 Thank the court when your time is up or when you
are done
More Formalities
 If your time runs out, ask for time to finish
the thought and then sit down.
 Always address the court from a standing

position.
 Attitude is one of respect and deference.

 It is OK to disagree with the court – but it is

never appropriate to treat the bench

condescendingly or flippantly or
disrespectfully.
Final Tips: Preparing for Oral Argument

 PREPARATION is the key to allaying nerves.

 Know the law & how it ties in with our facts
 Develop a solid outline for your trial memo on
the issues: capture the law, focus on strengths
 Be prepared to discuss weaknesses
 Consider your theme: why does your client
deserve to win this motion?
…And a Few More Reminders
 Check your 30-minute timeslot – posted on Canvas under
Assignment - “Oral Argument” at NOON today
 Arrive 10 minutes early for argument; sit quietly outside the
door to the room. Don’t peek your head in or knock.
 “The Court” will invite you in when they are ready.
 Dress as you would for court! See video posted on Canvas
under “Oral Argument” resources; p. 337 of AAP
 Try not to let the time cards distract you
 Remember, this is a conversation – not a speech. Anticipate
questions and do not expect to read your argument!