Oral Argument Strategy

Many lawyers and professors will tell you that you win arguments based on your brief, and you lose them based on your oral argument. Frankly, I still am not sure what people mean by that.

I think they mean that judges read briefs, make up their minds, and then only a disastrous oral argument will undercut an otherwise outstanding brief. Even if you think you wrote the winning brief, that is no excuse to show up unprepared.


Sure, you might lose an extra hour of sleep, but it feels so much better to show up for a knife fight with a bazooka. If the other side shows up with a genius argument, then you are on the same ground. If the other side shows up with a bumbling mess, then you just outperformed your opponent. The day you show up in court thinking it will be a walk in the park is the day you will get slammed with questions you have no answers to.

Adjust your argument

If the judge keys on an issue, then focus on that issue. That does not mean to ignore other issues, but you can reallocate your time, and focus on what appears to now be the key issue. This is always a personal judgment call, but if the judge has made your points, then you should slim down your argument. Sometimes the most effective arguments are the shortest ones.

For example, if you are the moving party, and the non-moving party gets torn apart, consider foregoing your rebuttal. At that point, victory appears to be at hand, and there is no reason to change the momentum in the room. If your gut says to stay seated, then stay seated.

(photo: Penn State Law)

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