In my post on oral argument preparation, I alluded to the importance of coming up with a roadmap to your argument. The thing is, a good roadmap is one of the most important components of an effective oral argument; it is how you helpfully say to the court here is what the heck I am talking about.
Think of your argument as a road trip, and yourself as the navigator (or the GPS unit, I guess). Think of the judge(s) as a driver who will miss every exit if you don’t remind him to turn. In other words, road-mapping isn’t just something you do at the beginning of your argument like a nervous law student spitting out an introduction in moot court. It should be an integral part of your argument, your answers to questions, and your rebuttal.
Road-mapping in your introduction
Always start your argument with a short roadmap. Tell the court how many arguments you are going to discuss (keep it to two or three, if you can), and briefly explain each one. Whatever you do, do it quickly. You don’t want to be interrupted with a question, if you can avoid it.
Here’s an example of an opening roadmap. It should be the first thing out of your mouth after whatever introduction is standard in your jurisdiction (“may it please the court” or “good morning,” for example).
This court should deny plaintiff’s motion for summary judgment for three reasons. First, because the plaintiff has not met its burden of production of evidence on its account stated claims. Second, even if the plaintiff has met its burden of production, genuine issues of material fact remain for the jury to decide. And third, even if no issues of fact remain, my client, the defendant, is entitled to judgement as a matter of law.
As a recent commenter pointed out, this may be all you get to say before you are fielding a barrage of questions. But if you do get a barrage of questions, at least you can rest assured that the court has other ideas about what it wants to hear. That’s a good thing. If you don’t do a roadmap, you will be tempted to pick randomly at your outline between questions, adding no value to your argument and trying the court’s patience.
Road-mapping your responses to questions
Imagine if the judge—your driver, remember—asked whether you thought it was a good idea to stop for lunch in the next fifteen minutes or so. You might tell the judge that, since you are getting close to a major city and since rush hour is a few hours away, that should work great. Or not.
In any case, you should answer questions from the bench in the same way. When you get a question, locate it on your map. Like so: “That goes to the second element of battery, your honor, which requires plaintiff to prove that my client meant to cause harm.”
If the question is involved, you may also want to roadmap your answer before you deliver it. I once had the pleasure of watching Supreme Court litigator Tom Goldstein deliver a presentation (not an argument, but still), and he did this amazingly well, on the fly, as he was given issues to address by the audience. Done well, it looks something like this:
Your question has two parts, your honor, and I will take them in turn. First, a debt collector’s violation need not be intentional to constitute a violation of the FDCPA, and second, the failure to report a debt as disputed does constitute an e(8) violation.
Road-mapping your way back into your argument
Perhaps the most difficult part of oral argument is segueing gracefully back into your argument after a question has taken you further down your outline or off on a tangent. Let’s say you had two issues—liability and damages—and halfway through your discussion of liability, the judge asked you a question about damages. Should you try to return to the place in your outline on damages?
I think the better practice is to finish talking about the issue the judge is asking about, then return to other issues if time allows. In other words, if the judge takes you to damages, discuss the rest of your points on damages. First, because you will probably get more questions about it, since it was obviously more of a concern to your judge. Second, because skipping around a lot just gets confusing.
So, for example, you might finish up answering a question about back pay, then say “Similarly, plaintiff’s calculations of front pay are grossly exaggerated due to two erroneous assumptions ….” After you finish, go back “up” your outline to the question of vicarious liability. Assuming you located the question on your roadmap in the first place, this will flow better and result in a more cohesive presentation, even with the interruptions.
Road-mapping your rebuttal is easy because your rebuttal should be simple and to the point. There is generally no point arguing on rebuttal; just sum up your argument with a couple of zingers and sit down.
So just say something like this:
Two points on rebuttal, your honor(s): First, the lack of my client’s fingerprints on the murder weapon, coupled with the prosecution’s failure to turn up any gloves or other means of concealing fingerprints, means my client could not have wielded the weapon. Second, the contamination of the DNA evidence by the crime lab renders it completely unreliable. Thank you.
Done. Sit down. You may vary from this formula after you have at least twenty oral arguments under your belt and you have a really good reason for it.
Additional thoughts on advanced oral argument
Road-mapping your argument at this level is definitely advanced oral advocacy. It requires a deep knowledge of the facts, law, and your argument. It also comes easier as you learn how to control the argument from behind the podium, even when you are being respectful and getting peppered with questions.
Many judges and lawyers will tell you that cases are rarely won on oral argument, although they can be lost. However, at least one federal judge in my jurisdiction says he often finds oral argument helpful in making up his mind. I think that is often true in state court, too, where crowded dockets mean judges are grateful for anything that clears up the issues so they don’t have to spend hours researching cases themselves. Learning to roadmap as you go is one of the keys to gaining whatever you can from an oral argument.
Whatever you do, preparation is key. Knowing the facts, the law, and your argument inside and out will always give you the edge over a less-well-prepared opponent.