General Practice, Solo & Small Firm DivisionBest of ABA Sections
Tort & Insurance Practice
Oral Argument from a Practitioner’s Point of View
Karen L. Kendall
Oral argument is your reward for the long hours spent perfecting your brief. It is your opportunity to talk to the court about your case: to find out about the court’s concerns, to answer its questions, and to correct any misunderstanding the court may have about your client’s position and your argument. The following are some thoughts gleaned from past experience on how to maximize your efforts.
Begin at the End. A significant amount of time may have passed from the conclusion of briefing until receiving notice that oral argument has been scheduled. Let’s assume that you receive notice of oral argument six weeks in advance. Don’t wait until the week before oral argument is scheduled to begin your preparation; do it the same week you receive your notice. Do some of your preparation each week until oral argument. The sooner you refamiliarize yourself with your case and the sooner you update your research, the sooner your subconscious mind will also begin to work on the task at hand.
Begin by reviewing the briefs in reverse order. At the end of briefing, what were the strengths and weaknesses of each party’s position? What was the case about by the time the reply brief was filed? What was really at issue at that point? Had any concessions been made? Or was there a failure to refute on a particular point?
Once you have completed your initial review of the briefs, review the important authorities. Those cases should be reread, your opponent’s cases distinguished, all significant cases should be Shepardized, and your research should be updated prior to oral argument. The relevant statutory language should also be reviewed.
If the case involved a trial, or even if it did not but there is a transcript involved, reread the transcript before oral argument. It is also helpful to have the relevant portions of the common law record, report of proceedings, statutory language, and significant cases copied at the time you file your brief, in anticipation of oral argument.
Produce an Outline. Your next step is to produce an outline that contains the key points of your argument. After that, your outline should be reduced in a manner similar to the way in which a cook simmers a broth. Your argument should finally be reduced so that it fits into a one-page outline. At that point, you will be prepared for oral argument.
You will want to take with you copies of the relevant pages of the record, highlighted copies of important cases, copies of statutes, the briefs, and your outline to the argument. However, although you have all these materials with you at the oral argument, it’s better to take as little as possible with you to the podium.
Be sure to go early to your oral argument. Sit in the courtroom and observe the court and counsel during the preceding arguments. The more that you know about the general temperament and demeanor of the court prior to your oral argument, the better off you will be and the fewer surprises you will have.
If possible, try to find out whether the court makes a practice of preparing and circulating a tentative opinion prior to oral argument and whether the court is what is generally described as a prepared or "hot" court. If you have never argued before the court before, it is helpful to talk to others who have to get an idea as to what to expect.
Stay Flexible. In order to communicate effectively, it is better to stay flexible so that you will be able to focus on the concerns of the court rather than continue to adhere to any agenda that you might have. Do not go to your argument prepared to recite a particular speech. You will need to modify here and emphasize there. You need to know the applicable law, the facts, and the points of your argument so that you can listen attentively to the court’s questions and give answers that enhance the strength of your client’s position.
Whether you are the appellant or the appellee, it is crucial to take your cue from the court’s questions. The questions should be answered as soon as they are asked. If you do not understand a question, simply say so. If you do not know the answer to the question, simply say so. But, certainly, try to figure it out. Sometimes it appears that the court asks questions that are simply hard questions; the judges do not have the answer either, but they do appreciate getting your best shot at an answer.
If You Are the Appellant. If you are the appellant, you are fighting an uphill battle. By the time briefing has been completed and you have filed your reply brief, you should be acutely aware of the strengths and weaknesses of your case and know what needs to be covered during your initial argument to the court. At the outset, you should tell the court the nature of your case, the critical issues, what happened below, and the relief you are seeking. If there is more than one way that the court can resolve the case and grant you the relief that you are seeking, point that out.
As to concessions, do not concede. Any important and necessary concession should have been apparent during briefing. Any unanticipated concession made during oral argument is likely to appear in an opinion. It cannot help you; it can only hurt you; do not do it.
If you write out anything at all verbatim, it should be a short conclusion. It should not be read to the court, but it should simply capture the essence of your case: the essential message you want to convey to the court phrased in memorable, persuasive language. You can then, when you run out of time, state your conclusion succinctly in a persuasive manner in closing your primary argument and your rebuttal.
Your rebuttal is probably more important than your opening argument. At that point, you have seen how the court has questioned your opponent and how your opponent has responded to your arguments and the court’s questions. You can point out to the court the points of agreement, the points of dispute, and the reasons why the court should rule in your favor. Although it is true that you are not making a jury argument, nonetheless, you are trying to make the court see that, in order to do justice, it will rule in your favor.
If You Are the Appellee. If you are the appellee, even more so than the appellant, you do not want to proceed to the podium with rehearsed arguments. Your position is rebuttal: a refutation of your opponent’s points. You want to approach the podium with the understanding and knowledge of where the argument left off when briefing was completed. The most important thing you can do, besides knowing the facts and the law, is to listen carefully to both your opponent’s opening argument and the questions the court asks your opponent. Reflect upon what your opponent did not say as well as what he did say. If you can answer a question put to your opponent in a way that enhances your client’s position, do so. You have the advantage of the inertia of the reviewing court operating on the presumption that the case should be affirmed. You should remember that the case can be affirmed on any basis that appears in the record and not just for the reasons the trial judge ruled in your favor. When you conclude your argument, ask the court to affirm.
Develop Your Own Style. Much of what is written about effective appellate argument seems to suggest that there is a particular style that can and should be achieved. That is not true. The best style is your own, which is the style you are comfortable with and the style that is an expression of your own personality.
What is central to an effective style is your engagement with the subject matter and the issues before the court, and your engagement with the court in a dialogue, or exchange, that frankly explores the important questions.
The most important consideration after oral argument is your memory. Forget it. No one is satisfied with his or her performance following oral argument. As long as you did not make a fatal concession, do not worry about it.
Goals for the Future. These are two good goals for oral argument: (1) to be able to walk up to the podium entirely without notes, and (2) when the court has asked your opponent a devastating question and he has answered it wrong, not to waste time arguing when you have already won. At that point, you can only lose. Although this will not happen very often, it should be your goal to have the necessary restraint and self-discipline to refrain from arguing when it is apparent that further argument is wholly unnecessary.
Karen L. Kendall is a partner in the firm of Heyl, Royster, Voelker & Allen in Peoria, Illinois.
This article is an abridged and edited version of one that originally appeared in The Brief, Spring 1997 (26:2).