September 20, 2012 Articles

Tips for Winning at Oral Argument

Know the record, know the law and the correct standard of review, and be organized, but not scripted.

By J. Bradford McCullough

Alex Hawkins was a colorful character who played running back for the Baltimore Colts and Atlanta Falcons of the National Football League between 1959 and 1968. He was confronted by his wife one morning as he walked into their house. She frantically asked him where he had been all night. Alex said that, because the moon had been so beautiful, he had decided to spend the night in the hammock. His wife was skeptical. She noted that the hammock had been removed two weeks earlier. Alex, however, was steadfast in his position, replying, “Well, that’s my story and I’m sticking to it.”

While it might not seem that way at first, Alex’s last line of defense provides useful advice to counsel preparing for oral argument. Let me be clear. Although Alex’s argument conflicted with what seemed to be unassailable evidence, your argument should not do the same. I’m not suggesting that your oral argument should be contrary to the evidence, any aspect of the record, or controlling legal authority. To the contrary, you should develop your argument—your story—so that it is consistent with the evidence, the record, and the law. That carefully crafted argument should be reflected in your brief and then hammered home in your oral argument. In other words, develop your story, tell it in your brief, and then stick to it in your oral argument.

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