Presentation Transcript

1. Oral Argument pointers

2. Three goals at Oral Argument Get the judges interested in your case and motivated to rule in your favor. Focus on the few aspects of your cases that are most determinative. Fundamental one or two issues; Most prominent facts in YOUR story; Most compelling policy determinations. Access the judges’ thinking. Discover their doubts about your theory so that you can clear up any confusion.
3. Structure of an oral argument Introduce yourself and the case. Summarize the client’s story and identify the core issues Make a legal argument for each point. Conclude.
4. Introduction Good afternoon, Your Honors. I am Allison Kort, representing Janice Simms in this case. We ask this Honorable Court to affirm the judgment below.
5. Summarize the story Identify the core issues You can either: use the issues to start the story, or start the story first and identify the issues afterward as a bridge to legal argument Focus on the essential facts (don’t let the judges let lost in marginal details—ie the facts during Simms’ employment) “The statement of facts is more often than not the argument itself.” Mention the facts that hurt you, but minimize their effects, just as you did when you wrote your statement of facts.
6. Legal Argument Tell the Court how many legal issues you will address and what they are. Go through one issue at a time.
7. In General, If you are the appellant You may reserve a minute or two for rebuttal by saying so after you say the introductory sentences. After the respondent has argued, you can use the time to reply. Don’t reiterate arguments you already made or raise new arguments. ONLY use rebuttal to correct significantly inaccurate or misleading statements made by the respondent, and only one or two. If there’s no need for rebuttal, you can waive it.
8. If you are the Respondent: Listen to the appellant’s argument and respond to the appellant’s contentions during your argument. If the appellant surprises you during oral argument by saying something new that might hurt, you need to neutralize it on the spot when it’s your chance to speak.
9. Hot bench v. Cold Bench Hot Bench: Judge may ask so many questions that your time runs out. When the presiding judge says “thank you, counselor,” you are finished. Conclude in one short sentence asking for the relief you seek. If you’re in the middle of answering a question when your time runs out, ask for permission to finish the answer. If you finish before your time expires, conclude, pause to see if they will ask more questions, and sit down.
10. Cold Bench Often HARDER than a hot bench, because you have to give a soliloquy on your case. Present your argument: Summarize the relief you seek. Argue why the court should hold in your favor. Conclude.
11. Questions from the bench They won’t all be challenging your position. Neutral: requests for information. Concerned: how a particular problem can be resolved. Friendly: ask you to focus on an aspect of your case that the judge believes to be particularly persuasive. Prompting: what you’re discussing can be dispensed with in favor of something else the court cares about more.
12. How to answer questions Listen to the entire question carefully. Don’t be afraid to pause for a moment to think. (One way to think while not answering is to say “Thank you for that question, Your Honor.” Also, if you pause, it won’t be nearly as long as you think it might be. Anything is better than “um” or “you know.”) Don’t leap to assumptions about a judge’s thoughts. The judge might be arguing with you, or might be wanting to give you a chance to state your argument out of a sense of fairness. Answer the question immediately. Don’t say you’ll get there when you address that point in your argument.
13. How to Answer Questions Answer the question you’ve been asked, not one you would rather have been asked. Don’t dance around the issue. Show the judge why the problem he might be posing should not present a decision in your favor. Give a realistic counterargument to a point of weakness that a judge addresses. What if you don’t know the answer to the question? Tell the judge you can’t answer. Don’t fake it. The judge can tell.
14. Building a bridge During the answer, think about building a bridge to the next point in your argument. Redirect the argument back to your theory so that you can show the court how your theory as a whole, satisfies the concerns raised from the bench.
15. Delivery and Style “Respectful intellectual equality”—a conversation with the court. Try not to look scared/deer in the headlights. Make eye contact. Look only at your notes to remind yourself of the next subject for discussion. Speak loudly enough that the judges don’t have to strain to hear you. Avoid lots of detail when discussing cases and statutes. Focus on the big picture—the few determinative facts and the few determinative cases. Avoid unnecessary movement. Don’t shuffle feet or papers, avoid pointing or talking with your hands. Don’t be obsequious, but be respectful. When your adversary argues, don’t make facial expressions, but sit there and listen. You may write down notes that you will need to help you respond in your own argument.
16. How to prepare for oral argument Prepare two versions: One version with material you MUST argue (would take about 40% of the time you’re allowed). The other version expands on the first (in case you have a cold bench). Prepare notes: the fewer the better. Whatever works for you is what you should do, but here’s what I’ve found to helpful in oral argument: Glue four pieces of paper to a folder so that you only have a single “paper” with you at the podium. On the outside: list the subjects you will cover. If you come up with great phrasing for a theme, write that down. On the inside of the folder: on the left side: outline in detail the arguments that you MUST make; on the right side, outline more expansive version if you have a cold bench. On the outside of the folder, make a list key cases you want to mention. every weakness in your case and every question that you might ask if you were a judge. What to take with you to the podium: Your folder Your brief and any exhibits that you would like to cite A pen (but don’t play with it)