There is an old saying in the law that while you can win appeals on the briefs, you can only lose them at oral argument. Whether this old saying is true or not is difficult to say, but it underscores the importance of thoroughly preparing yourself for oral argument. As you approach your first appellate oral argument, consider the following practice points:
Mind your calendar!
Before you start digging up the briefs, marshaling the case law, preparing an outline or anything else, the very first thing you need to do is calendar the date, time and location of the argument. Skip this step at your own peril.
How did we end up here?
Typically, oral argument is at the discretion of the reviewing court. That discretion, unfortunately, is usually exercised against granting oral argument. Indeed, only about twenty-five percent of cases are orally argued in most intermediate courts. So why this appeal? As you refresh your memory of the central issues on appeal and the applicable law, try to surmise what it is about your appeal the justices want to talk with you about. Sometimes it will be obvious – issue of first impression – but more often than not, it may be difficult to identify the reason behind their decision. Keep this question in the back of your mind as you proceed through your preparation. If you can identify the reason behind their decision, it could help you in your preparation. More on this later…
Rules! Rules! Rules!
Every intermediate and supreme court will have their own rules concerning the manner in which oral argument is presented in their court. Note rules concerning required arrival times, attire, time allotments, use of exhibits, and other rules concerning courtroom etiquette.
Master your record and the key authorities.
By now you will have completed the draft of your brief(s) and should have a strong command for the facts and relevant law of your case. Since several months have likely passed since you filed your brief(s), it would behoove you to refresh your memory on both the facts and law that are at the heart of the appeal. During the argument, you may be asked to discuss one or more of the authorities you or your opponent relied upon in your briefs.
Prepare an outline.
Unlike your principle brief where you will have the luxury of being able to address each issue raised in the appeal, time constraints placed on counsel at oral argument will force you to focus your presentation. Thus, make sure to prepare an outline that raises your best arguments first. If you’re confident you’ve identified the reason the justices granted oral argument in your case, this is likely a good place to start. However, no matter where you start, keep your outline brief and to the point. It is meant to be a life vest, not a crutch. It should be no more than a page and should contain a skeleton outline of your arguments, focusing solely on broad themes and key case law.
Prepare your opening and closing.
While you may not be able to control where the argument goes once you’ve started, you will in all likelihood at least have control over how it starts and how it ends. Prior to your argument, prepare a brief opening in which you introduce yourself, who you represent, the relief you are requesting, and a roadmap of where you would like to take the discussion. Similarly, prepare a “clean exit” for yourself by memorizing a prepared brief statement reiterating the requested disposition on appeal.
Visit the court to observe a live oral argument.
If possible, make a serious attempt to visit the court and observe a live oral argument. This will give you an opportunity to observe the layout of the courtroom, how other lawyers (potentially more experienced) address the court, and possibly give you an opportunity to observe the panel who will hear your arguments. If that is the case, take that opportunity to get an idea of which justices are active or passive during arguments.
The best oral arguments will be closer to a conversation than a question/answer session. It is vitally important that upon receiving a question from the court, you stop whatever you were saying and listen carefully. Do not interrupt or talk over the court! Once the justice has completed their question, answer it directly. Answering first with a simple “yes” or “no” will likely afford you the opportunity to explain further. If you cannot answer the question, do not attempt to do so. Simply tell the court you are unable to answer the court’s question at that time and request an opportunity to file a supplemental brief addressing the question. Otherwise, do your best to answer the question and then transition back to your argument. Equally important is to listen to your opponent’s arguments. They may stubble in response to a question and unintentionally concede a major point, mischaracterize a critical fact or misinterpret a rule of law. Sometimes, your best argument may come from your opponent’s mouth.
Under no circumstances whatsoever…
Read from a prepared statement;
Interrupt the court;
Belittle, denigrate or attack your opponent, the district court, or the court;
Ignore a question from the court;
Misstate the law or the facts; or
Talk for the sake of talking (if you have completed your argument with time left, simply conclude and sit down).
To Rebut or not to rebut.
That is not the question. If you are the appellant, some jurisdictions will give you the opportunity for rebuttal argument. If it is permitted, make sure to reserve some of your time for rebuttal. Typically, anywhere between a quarter and a third of your total time will be sufficient. Now, use this time wisely. Do you use it to rehash arguments you’ve already made – this will only be a waste of yours and the court’s time. Use it to either introduce arguments you were unable to raise in your principle argument or better yet to address points raised by your opponent.
Approaching your first appellate oral argument can be both exciting and terrifying at the same time. These practice points are only meant to help provide a framework within which you can approach your first appellate oral argument. While they will not guarantee success, they will at a minimum help you stand a fighting chance – the most any of us can really ask for.
 This article is intended to be read in tandem with John McCoy III’s article, Handling Your First Appeal.