How to Prepare for Oral Argument

how-to-prepare-for-oral-argument

Oral argument is one of the most exciting parts of litigation, and only a few lawyers are really good at it. But even if you aren’t a naturally-talented presenter, you can still improve. The important thing is to get away from your outline and use a more “modular” approach to oral argument.

Many lawyers — especially those new to law practice — prepare for oral argument the same way, by creating an outline and rehearsing as they would for a speech. They may prepare for questions by talking through the issues with a colleague, but this does not usually result in effective oral argument. What it does result in is a stiff argument, awkward recovery after answering questions, and an ineffective presentation overall.

That’s because oral argument is so much more dynamic than an outline — even if you have a “cold” bench. In order to prepare for dynamic argument, you need a more dynamic approach than an outline and a few run-throughs.

Preparing for oral argument takes a deep understanding of the law, the facts, and the arguments. Then, you need to break up your argument into “modules.” You can organize your argument (not just outline it) around your modules, but then you must practice making your argument in and out of order. Only by doing this will you be prepared to field questions and deliver your argument with skill and nimbleness, instead of rigid adherence to an outline.

Ditch the Outline

An outline isn’t inherently good or bad, but it encourages rigid thinking. Lawyers who rely on an outline alone tend to get thrown off by questions, which often results in repetition and skipped issues.

Worse, many lawyers also haul a binder (or several) full of cases, pleadings, exhibits, and briefs to the podium, which they try to rely on while delivering their arguments. I think this is because they rely on their stacks of paper in place of adequate preparation.

Of course you can use an outline if you really want to — I do — but it is important to shed the rigid thinking and intellectual laziness that outline-as-preparation encourages.

Practice Intense Preparation

There are no tricks to good oral argument, and the single most-important component of great oral argument is preparation. I realize it is one thing to say Prepare! and another to do it with a full caseload, but it is a lawyer’s duty to prepare adequately, if not better. You must find the time.

You must know four things about your case for every argument:

1The facts. Know the facts of your case backwards and forwards. Make sure you know which are actually in the record, too.

2The law. Although you probably researched the law at various points in the litigation, including when you wrote the brief, you should review at least the key cases before your argument, and learn them well enough to talk about the nuances without the case in front of you. The same goes for any statutes or rules involved, which you should know inside out.

You must also be able to state the rule you want the court to adopt and apply, whether it is a rule from existing law or a new one that you want the court to adopt. Enough judges have asked me about this that it has become one of my favorite questions to ask students when I judge moot court competitions — few are prepared with a rule. But if you want to win, you had better know how you want the court to do it.

3Your argument. Make sure you can explain why your client should win. This ought to go without saying, but I have seen an astonishing number of attorneys who cannot seem to articulate a coherent reason why their client ought to win.

Your job is to convince the court that your client ought to win, and give the court a legally-permissible route to that result. Don’t forget the second part. You cannot win without it.

4What you want. This should go without saying, too. You must be able to tell the court what you want it to do. By the way, as part of this, you should make sure the court can do what you want it to do. Your client won’t thank you for the time and expense of a motion hearing if the court doesn’t have the power to grant your motion.

Organize and Practice Your Argument

Here’s how I like to organize my argument. I write each issue I want to discuss or point I want to make on a separate index card (or piece of paper, but the idea is to keep it short — these are prompts, not parts of a script). Then, I take each index card and practice the argument around that topic or idea. Usually, the oral argument starts to organize itself as I do this, because I generally refer to other cards as I go. As the argument begins to take shape, I start laying out the cards on the floor to sort them.

As I lay all the cards out on the floor (this works great for organizing the topics you want to discuss with a witness on direct examination, too), I put them in the order that makes the most sense. Group them into the two or three main topics you need to argue. Even if your argument is going to be complicated by necessity, group it into a few main topics, if you can.

Now, turn those main topics into a roadmap. Starting your argument with a concise roadmap is helpful for the court, because the judge will know right away if she is likely to get an answer to her questions, or if she should just go ahead and ask them now because you aren’t likely to cover them.

Spreading out index cards on the floor works for me, but you could also do an outline, if you prefer. I just think it works better to start with something more flexible, and convert it to an outline as it starts to come together.

Whether you do an outline or not, you should also practice your argument as a single, cohesive unit. You might get a cold bench, after all. I usually run through my argument this way a few times, then set my index cards and outline aside and go for a walk. (Bring your dog, if you are preparing at home.)

With no prompts in front of you, go through your argument several more times from memory. Work through it without resorting to your outline or notes. This will force you to learn your argument much more thoroughly than if you are always relying on your notes.

Practice your argument with non-lawyers, too. If they look bored, you aren’t doing a very good job. Keeping a non-lawyer interested forces you to boil down the facts, issues, and arguments to their essentials. You can always go into the nitty-gritty (boring) details if you need to, but it’s generally better to get to the point — especially with judges.

Commit Your Argument to Memory

Outlines, binders full of reference material, and other paper and props are distractions, not performance aids. The best way to argue is from memory (although it won’t hurt to bring your index cards or outline with you, just in case — or just for show).

If you have followed my advice so far, you have essentially committed your argument to memory. Deep understanding of the facts and law will give you the ability to discuss the issues without an outline to guide you. Practicing your argument out of order helps dissociate each issue from your outline. Getting out of your office and walking as you practice will help you embed your argument in your brain. As you walk around, your brain will associate your argument with your surroundings, which will make it easier to remember your key points when you are under stress at the podium.

Your goal is not to remember your argument word-for-word; that is counterproductive. Your goal is to know what you want to say about a topic whether or not you are interrupted. If you are interrupted, you must be able to locate the question in your argument, then segue gracefully back into your argument after you answer. In other words, know what you want to say, and then cover at least the key points whether or not you are interrupted with questions.

If you have followed the steps above, you should have your argument sufficiently “memorized.”

If You Can, Moot Your Argument

Not every argument merits the time and expense of a moot session — or several. But if you can moot the issue, you will get invaluable information and feedback. If your “judges” do a good job, you will have a good idea of what you may hear from the bench. You will also get great feedback on the way you argue so that you can improve.

I’ve had the opportunity to conduct several moot sessions on both sides of the “bench,” and it has been well worth the effort in each case. Do it if you can.

Last-Minute Prep On the Day of Your Argument

Here is what works for me on the day of my argument, but what you do is not as important as having a routine that quiets your nerves and gives you one last refresher of the facts, law, and your argument.

I usually get dressed, then go walk the dog. (My hearings tend to be first thing in the morning.) While we walk, I run through my argument — out loud — two or three times (wear a Bluetooth headset if you don’t want to look crazy, and people will think you are just on the phone). I keep it up in the car on my way to court. I don’t have my index cards or outline out when I do this.

When I get to court (always at least fifteen minutes early), I sit down and jot down my main “talking points” on a legal pad, referring to my outline if I need to. When my case is called, that’s all I take to the podium. I don’t try to review cases or the facts at this point. If I don’t know them by the time I am sitting in the courtroom, I’m not going to learn anything in those few minutes before I stand up to argue.

Preparation is key. If you have done enough, you will be confident behind the podium, and you will rarely be surprised by what happens in the courtroom. Don’t half-ass your preparation; it is always better to be over-prepared.

This was originally published on March 5, 2012. It was revised and republished on March 2, 2014.

Featured image: “Speaker’s table in conference room” from Shutterstock.

Lawyering Skills

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  • http://blog.simplejustice.us shg

    There’s a saying, proper preparation prevents piss poor performance. No mention of bluetooth, however.

  • Cameron

    Advice that was given to me by a great appellate attorney and former Minnesota Supreme Court justice is to always lead with who you are, who is your client, and what you want the Court to do. It might be the last thing you get to say before questions take the argument away from your presentation.

    • http://lawyerist.com/author/samglover/ Sam Glover

      The same person told me “no matter what, always have a point.” Solid advice.

    • Eric Voigt

      And you should always end with a short conclusion on what you want your Court to do. For example, you could conclude like this: “Because Officer Smith had a reasonable suspicion of criminal activity, the Terry stop was reasonable. Thus, this Court should affirm the lower court’s decision to admit the evidence.”

  • http://myshingle.com/ Carolyn Elefant

    I do the talk it through to myself thing also. Draws a lot of funny stares on the metro.

  • http://constructionlawva.com Christopher G. Hill

    You should hear me in the shower before an argument! Great tips.

  • http://www.ashevilleinjurylawyer.com Perry Fisher

    These are good practical suggestions and advice. I would add two things:

    First, shepardize your cases a few days in advance or oral arguments. You do not want to be surprised if a case you cited has been recently overruled or questioned. Next, practice telling the facts in a short simple way that compels the relief which you are seeking. Oral argument is your opportunity to have the court want your client to prevail.

  • Stephen

    This is great advice for anyone who has the time. But do you really want to do this kind of preparation when oral argument almost NEVER changes the outcome of an appeal? (Ask any former appellate clerk if you doubt it.) Your time would be better spent writing the best possible brief.

    • http://lawyerist.com/author/samglover/ Sam Glover

      Sure, you could totally just show up, half-ass it, and see if the outcome changes. That’s probably what great lawyers do.

      First, this isn’t a guide to appellate oral argument. This is a guide to oral argument, period, whether it’s a motion hearing in state court or an appeal in a federal circuit.

      Second, it’s not true that oral argument almost never changes the outcome of an appeal. You can definitely lose where you should have won, if you suck it up badly enough.

  • Adron Beene

    For law and motion I have a cheat sheet with salient statutes and cases in the event I am asked about a specific legal point. Pay attention to what is going on though and listen. It is also helpful to see what is going on in other cases while you wait. See if the judge is taking notes or is otherwise engaged. If the judge is not asking questions, unless you think you are creating a record, you are not doing much by talking. Do not repeat what is in your papers. If the other side provides a detailed summary of all the points in the papers, you probably look better stating that was covered in our brief. While you have to be prepared to deal with all the issues if asked, the best course is often just saying “submitted”.

  • http://hartmannlaw.net Patricia Hartmann

    A very good article. The advice to separate your points by using index cards really resonates. It helps you to gain clarity that can only add to your persuasiveness when presenting or answering questions. The advice to go back and reread your cases and statutes is also good. We can never read those authorities too many times. Often you see nuances that really are important.

  • Avocats

    At my first federal appellate argument (which was probably my third or fourth court appearance ever), I was terrified but had “lived” the case and knew the facts and relevant law cold. I had barely gotten my name out when the questions began. It was exhilarating that way. Best part is when one the district judge sitting on the panel asked me about a case, I responded (gently correcting his view of the case) and one of the appellate judges asked if I were sure of my recollection because the district court judge had been the judge in that case. I was and I knew. Be prepared.

  • WrongedInOhio

    Very good article. I have lived my nightmare and know it inside and out. $60,000. later. My fear is because I don’t know the “laws” to resight. I am going pro se in oral argument in the Sixth District Court of Ohio. Where can I go to find other Bureau of Workers Compensation cases about addition of a “flow through condition” which was a condition caused by an allowed condition I had surgery for, without paying for LexisNexis? Anyone who reads this and would love the opportunity to shame a fortune 500 company for 1) not taking ergonomic issues seriously, 2) once employee was injured beyond able to return to the same job even though the individual gained a Manufacturing Engineer/Industrial Engineer AAS, ignored all internal applies, 3 surgeries later, permanent disability, the employee was BACK DOOR FIRED by saying I exceeded MEDICAL LEAVE that I was not on. I was on BWC benefits. I made everyone aware of what happened from the Governor of the State of Ohio at the time Ted Strickland, EEOC, BWC, IC, Self Insured complaint department and I swear they are all in bed together and nothing was done to this company who the only reason I can wrap my ahead around is that they have federal contracts. I say that because once my wrongful termination case made it to the US Court of Appeals, it was one they just didn’t want to hear. I had a law firm on – pro bono. This will all make it to a book one day, mark my words. Anyone who would like to contact me anonymously, please do. I would love to hand a verdict to the unprofession company BWC rep who said “Booya” when I lost at the county level.

  • http://samglover.net/ Sam Glover

    Also, it’s not like you have a limited amount of time to spend that you can either put into your brief or preparing for oral argument. Your briefs will usually be filed a few days before the hearing, at a minimum (months, if you are arguing an appeal). That leaves plenty of time to properly prepare for oral argument.

  • Michael Bryant

    Very good piece, and where I can see that at times it doesn’t seem to matter, it will matter if you do a lot of them. I would add that know what you will lose on. It is better to give up points that are obvious, then talk in circles. Finally, don’t feel like you got to keep talking if you have said what you need to. I regularly use a lot less of the time then I have.

  • W. Lewis Black

    Great tips (especially since I’m preparing for a hearing this Thursday). I would just like to add one thing. I was recently at a CLE with a group of local district court judges. One of the judges was asked what he likes to see from the attorneys who appear before him. He said that he likes it when attorneys ask him if he has any specific questions or issues that he wants addressed before they begin their comments. I think that if you are as prepared as Sam suggests, you should be able to address those questions, and then continue with your argument.

    • Eric Voigt

      Interesting, but I would expect a judge to ask questions without being prompted by the attorneys.

    • http://samglover.net/ Sam Glover

      It’s a nice idea. I mean, you obviously want to address any specific issues or questions on the judge’s mind. But I agree with Eric. I expect the judge to ask questions if he or she has any. That sort of goes without saying in a courtroom.

  • Don Springmeyer

    Yes to all of the above, plus…my wife – a fine art painter – got me to try repeatedly videoing myself with my iPad presenting my argument modules, and then watching, weeping, and redoing. The idea is that it objectifies the performance and enables you to clearly see the flaws. The artists do something similar by looking in a mirror at their paintings in progress, or looking at them upside down.
    Try it – I find it to be a remarkably valuable tool.

  • Eric Voigt

    I think the issue statement is very important. When you initially stand up and state the issue, include your best facts. For instance, on a Fourth Amendment issue, you could say, “Did Officer Jones have exigent circumstances to retrieve clothing and shoes from Defendant’s home when the Defendant had to walk over 100 yards down a path littered with glass?”

  • Marsha Hunter

    I know a lawyer who puts her argument cards on an ironing board, simulating a lectern. She can stand up and see her notes very well.
    Excellent overview! Thanks.