Oral Argument Boot Camp
An effective oral advocate balances control and flexibility, directly responding to questions while continuing to emphasize a core theory. An effective oral advocate addresses any lingering doubts, demonstrates their knowledge and abilities, and serves as a problem-solver to the bench. Being an effective oral advocate takes significant preparation—battle plans. This oral argument boot camp walks you through the rigorous process of preparing for an appellate oral argument. Topics include techniques for conquering nerves, distilling a core theory, developing a dedicated process to practice answering questions, getting mooted, and more.
Jason Potter: Welcome to Oral Argument Boot Camp by Quimbee. My name is Jason Potter, and I'm a staff presenter at Quimbee. We have a number of course materials for you today, including slide handouts and detailed presenter notes. You can follow along with them, or you can just sit back and enjoy this introduction to oral advocacy.
In discussing oral advocacy, Justice Ruth Bader Ginsburg paraphrased Justice Joseph Story's poem Advice to a Young Lawyer. She wrote, "Be brief, be pointed, lucid in style and order. Spend no words on trifles. Condense. Strike but a few blows, strike them to the heart. Scattered fires smolder in smoke and noise. Keep this your main guide. Short be your speech, your matter strong and clear. And leave off, leave off when done." Oral argument is vital, it's precise, and it's well planned. Many attorneys fail to effectively prepare for this battle. Failing to put in the work for oral argument is really a missed opportunity to ensure that you'll sufficiently address any of the lingering doubts in the judges minds, to demonstrate your abilities as an advocate, and to appeal to the sensibilities of the individual justices deciding your appeal. Oral argument could be the deciding factor in whether your client wins or loses.
Suffice to say, oral argument is important. Preparing for oral argument is not simply a matter of rereading the briefs, creating a snappy opening, and then developing some sort of relevant thing to say about the brief arguments. No, no, no, it requires battle plans. Today, you'll be taken through Oral Argument Boot Camp, where you'll receive lots of strategies for long-term preparation and short-term preparation. The goal is to minimize the anxiety many attorneys feel about oral advocacy. All right, it's time to deploy.
Oh wait, wait, before we do, I have an introduction to make. This is Jennifer. Jennifer is representing Mr. Calvin Forsythe. He's a well-known artist who lost in his defense of a copyright infringement suit in the trial court. On appeal to the Second Circuit, Jennifer wrote the Appellant's Brief as well as a reply brief. Her case was assigned a date for oral argument. It's three weeks away. Jennifer will be conducting that oral argument, and she is nervous about the whole thing. Jennifer, welcome aboard.
All right, let's go over the grand strategy here. There are four basic things to think about in this mile-high view of oral argument; audience, purpose, tone, and scope. Let's talk about audience first, the audience of oral argument. Well, our primary audience of oral argument are judges. Another audience, a secondary audience, are clients, another secondary audience is the opposing side. So, when Jennifer prepares for oral argument, she'll want to prepare with her primary audience in mind, the judges deciding her appeal. If she prepares well and focuses on convincing that primary audience, then everything else should fall into place. If she expands her gaze beyond the judges at oral argument, it may make her more nervous. She should just imagine it's her and the judges in the courtroom.
The purpose of oral advocacy is multifold, it's multidimensional. There are essentially five purposes. First, to convince the court of the merits of the case, to clarify any issues in dialogue with the judges. Third, to shore up major points in the brief. Fourth, to answer any issues raised in the reply brief if you are the responding attorney. And finally, to persuade the court in a radically different way. So just to review those again. The purpose is to convince the court of the merits of your case. It's to clarify any issues in dialogue with the judges, to clarify in dialogue, to shore up some of the arguments that you made in your brief that might need shoring up, to answer any issues that you haven't had the ability to answer before because it's the reply brief, and to persuade in a very radically different way.
Comparing the Appellate Brief to the appellate oral argument is also instructive. In the brief, your choice of arguments is sequential. It's logical. The argument order might depend on the way courts address the issue, in what order the courts address it. Whereas in oral argument, the choice of arguments is much more radical. One places the most persuasive argument first, because you may not get to anything else. In the brief, the proportioning is based on complexity. What I mean by proportioning is how much space or time is devoted to which issue. In the brief, it's based on complexity. The most complex arguments garnish the most space in a brief. At oral argument, the proportioning is based on strength. You want to spend the most time arguing things that are good for you. So proportioning is based on strength. In the brief, you're unable to really address judicial concerns as they arise. The only concerns that you can address are those that you can actually anticipate during the brief-writing process. Whereas, in oral argument, you are directly addressing judicial concerns as they arise in real time.
In the brief, it's really an impersonal, written delivery. The brief doesn't have a face. The options for demonstrating zealous advocacy are certainly limited by the mode, by the method of written communication. Whereas, in oral argument, oral argument is a personal face-to-face conversation. There's a real sense of accountability for the advocate at oral argument, who has to face the judges deciding their case and articulate the arguments before them. So, in Jennifer's case, she'll want to take advantage of the opportunity to persuade the judges in a way she was unable to do in her Appellate Brief. The way she'll do this is dictated by her audience and those multiple purposes of oral argument.
Now, in light of the audience and the purposes, to clarify in dialogue is one of them, what should the tone and scope of Jennifer's oral argument be? Well, the tone should be conversational, informative, and spontaneous. The attorney's physical presence, speaking style, volume, and pace all matter. Charisma is only icing. In Jennifer's case, even if she doesn't consider herself the type of attorney who has charisma, this doesn't mean her argument will be any less effective than an attorney with panache behind the podium. Oral argument involves presence behind the podium. The advocate must be present, in the moment enough, to listen to the judges' questions, to process them, and to respond all in a matter of seconds. That doesn't take charisma, that takes presence. And staying present in the situation requires serious preparation.
And the scope. Oral argument is the logical extension of the brief. It builds on the foundations of the brief. You don't rehash arguments that are contained in the brief. Some courts actually have rules about that. You're living in the world beyond the brief. Now, basic training oral argument includes a classroom portion, and then you'll get to know what short-term training and long-term training look like. Jennifer has also allowed us to use her upcoming argument as an example throughout. Way to go, Jennifer. Thanks. Okay, let's make our way into the classroom.
All right, recruits, we are going to go all the way back to ancient Greece and the Ancient art of persuasion. Grecians invented, or at least perfected, rhetoric. Rhetoric is the art of public speaking to persuade. Aristotle defined it as "the faculty of discovering in the particular case all of the available means of persuasion". Rhetoric training required in-depth studying. In Ancient Greece, the modes of producing persuasion were ethos, logos, and pathos. Ethos is an appeal to the creditability and trustworthiness or character of the speaker. It's revealed in things like confidence in delivery, a deep understanding of the law and facts, in speech, in spelling, in grammar, and citation, in style in representation of law and facts.
Logos is an appeal to the logic of the speaker's argument. It's persuading through the structure of the speech, through comparisons, through analogies. Arguments that persuade along these lines often seem clear and concise and inevitable. Pathos is an appeal to the emotions or the values of the audience. In a pathos argument, one uses vivid language, memorable quotations. One tailors the argument to individual judge's concerns and values.
Jennifer has volunteered to give us a real world example of each of these modes of persuasion; ethos, logos, and pathos. Okay, Jennifer, first ethos. "Buy my used motorcycle because I care from my things." Good job, Jennifer. Now logos. "Buy my used motorcycle because you want to learn and mine is great for beginners. Oh, and it's on sale." Good one, Jennifer, you're on a roll. Finally, pathos. "Buy my used motorcycle or this puppy with a rare genetic mutation will perish if I'm unable to sell this bike. This is my only means of paying for the puppy's treatment." Well, great job, Jennifer.
The three modes of persuasion are interconnected. Think of them as three overlapping circles. Persuasion occurs on all three of these dimensions in every piece of advocacy. If you're not conscious of all three, well, chances are you are falling short in one or more. This is especially true in oral advocacy. Now, we're going to deploy from Ancient Greece to the United States. Oral persuasion is a historical aspect of American advocacy, but it's been significantly curtailed over the years. Up until 1821, the Supreme Court did not require written briefs. Before 1849, the U.S. Supreme Court didn't even limit the length of oral argument. Daniel Webster, Luther Martin, and their colleagues are said to have argued for six days in McCulloch v. Maryland.
In 1849, the U.S Supreme Court adopted Rule 53, requiring that no counsel is permitted to speak for more than two hours without special leave of court. In 1911, the length was further reduced to 45 to 90 minutes per side. And today, 30 minutes per side is the allowable time for oral argument in the U.S. Supreme Court. This trend does not imply that oral argument is not important to judges today. Albeit, the Appellate Brief is much more prominent than it was in the past. Oral argument is still important in clarifying issues that the courts find troublesome. Today, oral argument is still helpful and may even change minds. Judges Myron Bright and Richard Arnold of the United States Court of appeals for the Eighth Circuit conducted a study of appellate cases in that circuit. They found that oral argument was helpful in deciding cases about 80% of the time. In terms of assisting with the framing of the issues and the clarification of reasoning, Judge Bright said that oral argument has changed his mind in about 31% of cases.
Ethical rules applicable to oral argument boil down to using common sense and respecting the court. Here are some rules that oral advocates must be aware of. ABA Model Rule of Professional Conduct Rule 1.1 pertains to providing competent representation. Before oral argument, an attorney must be familiar with the substantive law, the applicable rules of appellate procedure, as well as local rules and internal operating procedures of the appellate court. This also includes updating case law you intend to use in your argument, up until the day of your argument. ABA Model Rule of Professional Conduct Rule 3.1 pertains to having a basis in law and fact for one's arguments. Arguing for an extension, modification, or reversal of existing law in oral argument is not frivolous. ABA Model Rule of Professional Conduct Rule 3.3(a)(1) and (2) pertains to not knowingly lying or failing to disclose directly adverse mandatory authority.
Judges often check the evidence in their cases and conduct independent legal research before an argument. If the attorney makes a false statement, assume that judges will find it. This also applies to the instance where a lawyer refers to an authority in oral argument that the attorney has not read. If an attorney learns of a relevant directly adverse case shortly before argument, the attorney needs to disclose it to the court and opposing counsel, and that's also required according to some court rules. ABA Model Rule of Professional Conduct rule 3.4(c) pertains to knowingly disobeying court rules. Just know and follow the court rules. Every court has rules pertaining to oral argument. You'll want to check the rules in your court pertaining to oral argument before starting the preparation process.
We noticed some themes among the various court rules when we looked at them. Theme number one, don't read during argument. Supreme Court Rule 28.1 states that counsel should assume that all justices have read the briefs before oral argument. Oral arguments read from a prepared text is not favored. Under Federal Rule of Appellate Procedure Rule 34(c), counsel must not read at length from briefs from records or from authorities. The second theme we noticed is that oral argument is the extension of the briefs. For example, the Seventh Circuit Rule 34(d) states: "In preparing for oral arguments, counsel should be mindful that this court follows the practice of reading briefs prior to argument." And the third theme we noticed was showing respect for the court and opposing counsel. For example, Seventh Circuit Rule 34(g) states: "Counsel may not cite or discuss a case at oral argument unless the case has been cited in one of the briefs or drawn to the attention of the court and opposing counsel by filing a supplemental brief or addendum." This is by no means an exhaustive list of court rules. These are merely a few themes that we noticed among the various court rules when we surveyed them.
All right, recruits, it's time to get up there and start training. Success in oral advocacy is almost all preparation. You know, hard work. At a glance, this training involves long-term preparation, short-term preparation, and day-of preparation. It's going to be some hard work to prepare for your oral argument, but I know you're up for it. Since Jennifer's argument is three weeks away, she'll want to set aside some significant time in her calendar. She'll definitely be able to prepare in that amount of time.
All right, long-term preparation. In long-term preparation for oral argument, there are at least three things to do; address nerves, learn the rules and customs of the court, and observe a selection of arguments. So, let's work on how to address those nerves. Lawyers are especially nervous people, and oral arguments certainly are no help for this. So, we're going to take some time to talk about overcoming nerves. Surmounting nerves is mostly preparation and practice. First, in the long term, find public speaking opportunities. Get used to speaking in front of people. For example, do a toast at a dinner party or volunteer to do a presentation at work. It seems grueling, but it's important to put yourself out there. You can also join a local Toastmasters group. Toastmasters is an international organization that helps people perfect their public speaking skills. There are chapters all over the United States and the world.
Second, try making intentional changes to your mindset. Amy Poehler once said, "I think it's glorious to be nervous. Being nervous is great." How often do we get to be nervous on a daily basis? Being slightly nervous means you care and you're alive and you are taking some kind of risk. Hooray for being nervous. A friend once told me to substitute the word excitement for nervous. That way, you acknowledge the physical feelings without putting a negative spin on things. So to answer your question, sometimes I get so excited about weekend update that I want to throw up. There's actually data to support that this works. In a 2013 study, researchers asked the study cohort to make and deliver an impromptu speech. Half of the cohort was told that they may feel nervous during the speech but to remember that the signs of nervousness like sweaty palms, racing thoughts, and elevated heartbeat were good and signs of prepping for action. The other half of the cohort did not receive that coaching. The cohort that had been coached to think about nerves in a good way performed better than those who had not been coached.
Another intentional mindset is to think, "I am a problem solver." In appeals, judges and clerks review the briefs, the issues, and the authorities, possibly also the record. And the judges then sit for oral argument. Afterwards, the judges conference with other judges to share their views on the laws and the fact. Approach oral argument as a preliminary conference before the judges' conference. Think, "You have a seat at the table. You are helping judges solve their problems."
Another intentional shift of mindset would be to think conversation not presentation. Oral argument is a dialogue between you and the judges. It's not a presentation. This mindset change may also ease your nerves. Now, you could boil all of these mindset changes down into a simple mantra. It might be, "Embracing nerves, I solve in dialogue." That's a mantra that combines all three mindset shifts, but you could come up with your own. Also, practice mindfulness and focus on your breath. When you are at the podium at oral argument, and you get the go ahead from the judges, always take a deep, inaudible breath at the podium before starting. The purpose of this is to breathe out the tension and keep your focus. Although, this technique should be practiced in advance so when you do take that breath, you breathe out tension in a reflexive way.
Another technique is to practice intention setting. In yoga, the instructor sometimes sets an intention for the class. It's something to orient one's mind around. Setting an intention for something can help produce anxiety surrounding it. It's often paired with a visualization of achieving that intention. For example, Jennifer's intention for her oral argument might be, "I am at ease." Finally, practice until your argument is muscle memory and distraction-proof. Another important goal in long-term preparation is to learn the rules and customs of the court. Try to visit the actual courtroom where you'll be making your argument. Learn the appropriate way to address the judges. Learn where any quiet spots are at the courthouse. Also, in the courtroom, it's very important that you know the volume that you must speak at in order to fill the space before the argument, because that can throw you off. How much volume does it take to hear your voice bounce off the back of the room? That's the volume you want, as long as it still sounds conversational. In the long term, it's also important to learn any special customs the court has. For example, in the New Mexico Supreme Court, there's a custom that all out of state counsel, even admitted pro hac vice, are introduced to the court by a local lawyer at the time of oral argument.
Another important thing to do during long-term preparation is to observe a selection of arguments. You can do this in person, via live feed. For example, the Florida Court of Appeal has a live feed of their oral arguments. Or you can review recorded arguments, like on YouTube. The Ninth Circuit records their oral arguments and many are available on YouTube. For the arguments you view, identifying things you like and don't like about the arguments. Be on the lookout for the advocate's use of a theory throughout the argument, the advocate's facility with answering any hypotheticals, the advocate's demeanor, and the advocate's recovery from questioning and return to argument. In the course materials, I've provided some links to strong oral arguments. One especially strong one is a video of former solicitor General Ted Olson's argument in Perry v. Schwarzenegger in the Ninth Circuit. The link to that YouTube video along with the start time of Ted Olson's argument is included in the course materials.
All right, now we're going to move to short-term preparation. This is in the weeks before oral argument. First, learn the terrain. Let's discuss the anatomy of oral argument. The first thing in oral argument is your introduction. The formalism, your introduction of yourself and the client, and reservation of rebuttal time. Formalism is, "May it please the court," or other similar introduction. It may or may not be applicable in your court. To determine if it is applicable, check some court transcripts or ask around or listen to oral argument audio. After the introduction is the theory of the appeal, then the relief requested, then a clear roadmap, and then a segue to the argument. In the main argument that follows, you will follow the roadmap that you set, if possible, but you want to be flexible to address any concerns of the judges or justices in the order that they want to approach them.
In the main argument, you'll also use signposts to stay on track. Signposts are indications to the judges of where you're going next. "First, I will argue... Second, I will argue... " And so on. And when in doubt, make your argument in IRAC form. Yes, we're back to old IRAC. After the main argument comes the conclusion. When there's one minute left to your argument, you should attempt to conclude. Give a few statements referencing your best points plus your request for relief. That request for relief is critical. When time expires, finish your sentence and thank the judges. You do not need to use all of your time though. Some advocates may be entitled to a rebuttal. In rebuttal, choose the one or two points from your case that were damaged during the Appellee's argument. But that could be remedied with a very brief rebuttal. After the rebuttal, conclude with a simple, "Thank you, your Honors." Do not reserve substantive arguments for your rebuttal. And you don't always have to take a rebuttal.
So, let's look to Jennifer's introduction and her conclusion. For her opening, Jennifer is planning on saying, "Good morning and may it please the court. My name is Jennifer Smith, and I represent the Appellant, Mr. Calvin Forsythe. May I please reserve three minutes for rebuttal? Thank you, Judge Lors." Then comes her theory. "This is a case about the integrity of an entire form of postmodern art that involves rescuing images from obscurity, changing their context and their audience, and suggesting something fundamentally different than the original. Mr. Forsythe asks that this court reverse the district of Connecticut's grant of summary judgment in the Appellee's favor with respect to the first fair use factor." And here comes her roadmap. "First, a rational jury could have found that the changes Mr. Forsythe made to a stock photo was a transformative use. A mere side-by-side comparison of the images shows that he turned a natural photo into a high-impact color illustration that was not plausibly suggested by the original. Second, a rational jury could have found that, albeit Mr. Forsythe made money as a result of the image's creation, it was merely a secondary effect.
"Third, a decision for the other side in this appeal stymies the artistic processes of thousands of artists by allowing a for-profit adventure company to dictate what is and isn't art. Third, a decision for the other side in this appeal stymies is the artistic processes of thousands of artists by allowing a for-profit adventure company to dictate what is and isn't art." Then she plans to move to her argument. "First, a rational jury could have found Mr. Forsythe's use of the image in question was transformative." She would make her first point if the judges haven't already interjected. Second, she would make her second point. Third, she would make her third point here.
And after she makes her main argument, she would conclude, "May I briefly conclude? Thank you. Mr. Forsythe is just one of many artists, like Banksy, like Jeff Koons, and Damien Hurst, who borrow source images already in the public view for an entirely new purpose. Because a jury could have found Mr. Forsythe's work is transformative, we ask that you reverse the decision of the District Court. Thank you. And finally, her rebuttal. "Chief Judge Lors and may it please the court. I have two points. First, point one. Second, point two. Thank you."
In short-term preparation, the next task is to do the grunt work. We've divided this preparation work into a number of guidelines. I call them guidelines because everyone prepares differently for oral argument, so we prefer to approach them as suggestions. Guideline number one, reread important cases for both sides and get cozy with the record. Focus on the cases in your briefs and in your opponent's briefs. Prepare to analogize your case to the precedent and avoid bringing up new cases you haven't alerted the other side to. One frequently asked question by attorneys preparing for oral argument is, "How do I look at my opponent's brief?"
Well, I think there are a number of considerations that you should think about when you are reviewing your opponent's brief. For example, you can look to how your opponent frames the legal issue on appeal. You can look at what core facts your opponent uses to frame the issue. You can ask what is your opponent's theory? And is there a way you can attack those theories? What arguments does your opponent lead with? Is that their strongest argument? What arguments, if any, does your opponent not include? Another question you can ask is what cases does your opponent use? Are they using binding case law? What persuasive case law are they using, and what cases does your opponent omit? Also, what legal ideas does your opponent extract from the law? And do the authorities used to prove the legal ideas actually support those or is your opponent stretching it.
As you're reading a brief, you can also think about whether your opponent discloses and adequately deals with important adverse authority and whether your opponent relies heavily on certain cases that you can easily distinguish or attack. How about, does your opponent showcase their favorable facts well? Are there any other particular strengths or weaknesses in your opponent's use of the facts? And does your opponent make any significant concessions, either explicitly or look for those implicit ones? Does your opponent appear to have an effective strategy for winning the appeal? And overall, after you've read your opponent's brief, do you get a sense about what arguments your opponent will likely bring to oral argument? These are some of the considerations that are worth pondering as you're reading your opponents brief or briefs.
You'll also want to carefully review the record. References to the record will likely enhance the court's confidence in other aspects of your argument, but incomplete knowledge of the record can be damning. So, consider indexing the record. Prepare to be asked what page a particular fact is on in the record. How will you access that information and do it quickly? Well, indexing the record helps. Assign page numbers to keywords, key arguments, key facts, and create an index of all of them. The process of doing this is part of learning the record.
Guideline number two, distill your case into a theory. A theory is an essential principle that saws together the law, the facts, and the policy, and if the court accepts it, it will win you the appeal. The purpose of the theory is to set the tone for oral argument at the beginning. It also assists you with recovery. After questioning, you'll have to come back to your main argument, and a theory can be a bridge to help you get back to your argument and back to a central message. A theory also leaves the court with the strength of your case, make it memorable. It's got to memorably explain why you should win.
So boil down that theory into one or two sentences. Tie the issues in the appeal into an overriding reason why you should win. Approach that theory from different angles, from facts, from law, and from policy. Why do the facts, the law, and the policy support or even compel a decision in your favor? This should be more memorable and more succinct than any theory that you developed in the brief. Here's an example theory. California's Proposition 8, "walls off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay." That's what Ted Olson said in Perry v. Schwarzenegger in the Ninth Circuit.
Guideline number three, decide which arguments to keep and which to discard. In the brief, you couldn't fit in every argument. You couldn't rebut every counterargument either. In oral argument, however, the advocate must prioritize the arguments even more radically than they did in the brief. So, surveying the arguments, ask what arguments are outcome determinative? Plan to address these arguments in depth. New arguments that aren't presented in your own brief sometimes can be raised orally before the court, but know your court rules because some court rules may restrict this. Also ask, what arguments are the judges likely to want clarified? And what arguments most closely relate to the facts? Ask, what's the most important point to dig more into, and what arguments could be conceded, if any? Rank your arguments in order of persuasiveness. There's no single method for prioritizing, but general advice is go for the jugular. Typically, the strongest affirmative argument is addressed first, unless you have to proceed in a certain order. And finally, don't do all this in a vacuum. Consider what your opponents approach might be as well.
Guideline four, draft a one-page outline of your argument. This is going to be the framework for your argument. And consider memorizing this light framework. This piece of paper will make its way to the podium. Guideline five, memorize a one to two-minute introduction and a very brief closing. Now, you heard Jennifer's. Plan to begin and end on a high note. Never end with, "If there are no further questions." And never end by stating how the court should rule without tying the relief requested to the substantive arguments you made. Incorporate the theory and tie your theory into the relief requested. Never recite in monotone or read from the page. Practice saying your opening and your closing aloud and practice delivering them slowly. Remember, the tone of oral argument should be conversational and spontaneous.
If you want a little inspiration for a spontaneous tone, take a listen to Michelle Obama, she's fantastic at this. She can take a prepared speech and make it seem spontaneous. Now, with your introduction and your conclusion, know it cold. The reason for memorizing your introduction and your conclusion is that you might be nervous at the beginning and you might be tired at the end. If you know the opening and the closing like the back of your hand, it can be stabilizing. Also, if you can get through your opening smoothly, it's a confidence builder.
Guideline six, create an oral argument notebook. In giving advice about oral argument, an article in the ABA Journal stated: "If you are to suffer humiliation or embarrassment, it probably will occur in connection with the court's questions. By the same token, if any part of the oral argument advances your client's cause, it's likely to be your responses to questions." So how do you rehearse responding to questions? One technique is called the notebook method. The notebook method is a dedicated way of rehearsing an argument, anticipating questions from the bench, and rehearsing your answers. This method helps you be better able to answer questions and then move back into your argument seamlessly. It's been used by many successful advocates like attorney Michael Tigar. He discussed the notebook method in his presentation, 12 Tips for Oral Advocacy at Duke University. His presentation is a YouTube video and the link is in the course materials.
Creating the oral argument notebook involves three steps, putting together a notebook with four tabs, brainstorming the questions and answers, and organizing them in the notebook. So, get a three ring binder with four basic tabs. The outline tab which you actually may create during this process of compiling the notebook. The second tab is a tab called options. These are the less important points that you're not really planning to address in your argument, but you would if the time permitted or if judges had a question about them. Third is your Q&A tab, and I'll talk about that in a moment. Fourth are cases or descriptions of cases. If you're going to just include descriptions, at the counsel table, you may want to have copies of all the cases. Have jump sites for any quotations you want to read.
Now, for that question and answer tab, you're going to want to brainstorm all the questions the judges may ask. Type them all up. None is too silly or farfetched. Take some time to do this brainstorming exercise. This list should not be short. You're goal is to anticipate all of the questions you might be asked, or at least the bulk of them. Include all types of questions on your brainstorm list. Here are some types of questions to help you with your brainstorming. Questions might include information-seeking questions. These are questions that seek clarification on legal arguments, authorities, facts, and procedural issues. Also, policy questions. These are seeking to address the broader implications of the decision.
Another type of question are hypothetical questions. These questions seek to define the limits of an argument. Another is the concession-seeking question. This type of question seeks to extract a concession of one or more arguments. Then there's the unclear or unanswerable question. These are seeking something you're just not prepared to answer or don't understand. There are non-questions. These are seeking an answer but neglecting to frame it as a question. There are friendly questions. These are seeking to assist you with your argument or in your response to a question. Remember that not all questions asked in oral argument are hostile questions. Some may be friendly. And finally, there are the dreaded questions. These are just the questions you dread. So type up your full answer to each question, and sentence form is fine for this. Just pour your answer on the page and don't attempt to organized that answer yet. The goal here isn't to memorize and it's not to deliver the answer exactly as you've written it. That's not the point.
After you've written an answer, distill your answer into bulleted phrases. Turn each answer into a set of bulleted points. Use the language of speaking also, not writing. The language of speaking consists of simple short phrases not long multi-clause sentences. Step three, organize your Q&A pairs by category in the binder under the questions tab. These allow you to see how your answers overlap, how they intersect, and most importantly, they can be used to loop the judges back into your argument outline.
Guideline seven, practice with that notebook. In the questions tab, ask yourself the question. Open the binder to that question and answer out loud. This should be without looking at your bulleted answer. Practicing out loud is important. You need to be able to let your brain learn the answer you've bulleted and let your mouth get used to saying those words. Check yourself against the bulleted answer. Now, your goal is to get close to answering as you bulleted the answer and to see if you can use the question to bring the questioner back to your outline of the argument. The first time you do this, you'll notice that you add extra unnecessary words and phrases that make your answer less persuasive. But as you practice, you'll stick closer to your well-thought-out phrasing. You should begin practicing alone with your notebook, and then you can incorporate more of an audience.
Guideline eight, get mooted. Here's some advice on getting mooted. Justice Antonin Scalia said, "No preparation for oral argument is as valuable as a moot court in which you're interrogated by lawyers as from familiar with your case as the court is likely to be." The purpose of mooting is to help fill out the question list and better anticipate the judges' questions. It also approximates the pressures and the variables of actual oral argument. It gives you practice recovering from an answer to your argument, and it assists in determining whether the advocate has enough content. You've got to be prepared for a cold bench with no interruptions of an argument, a fair number of questions from the bench, and a hot bench with numerous questions. Mooting tests the advocate's flexibility. You'll often have to make points out of order. And if you have a set expectation for how oral argument will work, you will likely be disappointed.
In terms of two using panelists, in Jennifer's case with her argument coming up in three weeks, she'll want to begin setting up mooting sessions and seeking panelists now. She'll want to make sure that her panelists are selected soon because panelists need enough time to read the briefs. She'll want to try to arrange for three people to serve as judges as she's arguing before the Second Circuit. And as difficult as it may be, Jennifer should try to choose panelists with different viewpoints than her own. From the outset, Jennifer should encourage the judges to ask tough questions and pose hypotheticals. The goal here is not to obliterate Jennifer. No, it's to stretch her as an advocate. Finally, she should seek panelists who are most likely to give honest, constructive feedback. Jennifer will want to do her argument once without a strict time limit. Then she'll want to practice with a stricter regard for the time.
She should try to approximate the real thing as well, like with a bailiff, with stating appearances, with the entry of the judges with robes, and so on. So what should she practice during her mooting sessions? Well, an advocate wants to practice listening to the question. This might seem obvious, but many attorneys want to respond to a question they wish they had been asked rather than the one that was actually posed. Also, an advocate will want to practice answering the question right away. Waiting to answer the question, putting it off, or implying that you'll get to that in a bit will likely annoy the judges. An advocate should also practice answering the questions directly. If it's a yes or no question, your response should begin with a yes or no. Judges can't stand when they don't. You can always explain or qualify your answer afterwards. And avoid explaining your answer before you give a direct answer.
It's important also to practice making direct eye contact with the judge who is asking you a question. During the argument, your goal is to make eye contact 80% of the time, 80%. An advocate should also practice answering questions candidly. Your client will have weaknesses and there will be areas where your opponent has stronger legal footing. Acknowledge these. For example, in Jennifer's case, if a judge in oral argument poked holes in one of her arguments, she may not need to keep standing behind it. Acknowledging a weak point can boost your credibility. She could say, "I recognize that my second point is weaker, but here's why that shouldn't matter." And if you don't know the answer to a question, just admit it upfront and offer to submit the information in a letter the next day.
After answering a question and explaining your answer, you've got to lead back into your planned presentation. The oral advocate who can do this communicates command of the courtroom. You should practice your recoveries during this mooting process. Sometimes you can even employ little devices to assist you like "Now, as I was saying... " or "Back to the issue of... " In mooting, also practice persisting. Avoid starting over. Avoid starting over. Practice is all about working through setbacks. Remember, oral argument is about recovery. You need to keep moving the argument forward during oral argument. If a judge asks you to move in another direction, you move. And if you have another point to make in that area, you better make it now and fully because you may not have the chance to do it later. And finally, in mooting, practice slowing down and not interrupting. Don't rush your argument. Practice pausing also immediately when someone interrupts you so you don't talk over them as a matter of respect.
Guideline nine, identify any demeanor and attire issues. So here are some dos. Do stay behind the podium. Do project to the entire courtroom. Do focus on all the judges equally. Do look judges directly in the eyes. Do dress to blend in. If you'd be remembered for your outfit, avoid wearing it. And do avoid humor, unless you're absolutely sure it will land well on all of the judges. And you can never be sure, so just avoid. Some don't: don't sway or shuffle your feet. Don't gesticulate wildly. Don't adjust your clothing or fuss with your hair. Don't fidget, and don't look for answers in the sky. That's common.
Guideline 10, practice responding to your opponent. This is about rebuttal. Some dos: do address the points your opponent made in their oral argument. Do give a pithy roadmap. For example, "Chief Judge Reinhardt, two brief points. First... Second... " Do listen carefully during the opponent's argument. Listen intently for major items that if they're not corrected could affect the outcome. And listen to the questions the judges are asking. You may want a chance to answer a question they asked your opponent. Rebuttal is a perfect opportunity for that. For example, you could say, "Judge Reinhardt, you asked attorney Gray whether Korematsu is still good law, and the answer is no because... " And do end when your time is up. Avoid asking for additional time. And when your time is up, finish the sentence and thank the court and sit down.
Some don't for rebuttal: don't discuss matters outside your opponent's argument. Don't treat rebuttal as a do-over. You may not use the time to finish or bolster your main argument or slip in something you forgot. It's not a do-over. Do not plan to make any more than two or three points. Choose one or two points from your case that were damaged during the Appellee's argument that could be remedied with a very brief rebuttal. And finally, do not get a confrontational tone when discussing the opponent. State points directly rather than using lead-in phrases like "Appellee said... " or "Opposing counsel tried to... " Now, about Appellee or respondent's argument, listen carefully and take notes during your opponent's argument. Don't totally change your argument when you hear the Appellant or a respondent's argument. You want to be flexible enough to adjust your arguments to the points raised by your opposing counsel and the court during the opening argument. Plan to build in responses to opposing counsel's points and to the exchange between opposing counsel and the court.
Now to debrief, a valiant oral advocate is efficient. They have a laser focused on the best arguments. They place a one-page outline of those arguments in their notebook. They bring tabbed printouts of cases and an indexed record. They don't rely on these documents during their arguments though. You should close your notebook if you have to. You need to make eye contact with the judges so you can see when they're going to ask you a question. And a valiant oral advocate addresses weaknesses directly during argument. They admit bad facts, and they admit bad law immediately and then explain why they shouldn't control. A valiant oral advocate is unflappable. That advocate anticipates, they prepare for, and they rehearse answers to the hard questions. "What are my weakest points? What answers do I have trouble answering? What questions do I dread?" Go through your brief and play devil's advocate to every point you make.
A valiant oral advocate makes quick recoveries from answer to argument, knows the relevant case law and the facts cold, updates authorities, and knows all recent developments, and builds the argument around a central theory and circles back to it. Finally, a valiant oral advocate balances control and flexibility. An advocate asserting too much control can cause them to become stiff and thrown off by interruptions and questions that take the advocate off message. An advocate without enough control can go tit for tat with the bench and may be unable to guide the discussion or center it around a central theory that we discussed in this presentation. An advocate too focused on flexibility may succeed in making their argument a conversation but start to organize their argument around the judges' questions as the argument progresses rather than their own argument. You want to strike a balance between control and flexibility in helping the judges solve the problem before them. Oral argument is the culmination of your role as an advocate. Jennifer, you can do this.
Thanks for joining us for Oral Argument Boot Camp by Quimbee. To learn more about the content of today's presentation, you can check out the accompanying course materials, which include today's slides and presenter notes. Thanks so much.