June 27, 2017 Practice Points

Tips for Mastering Your Answers During Oral Arguments

How you answer judges’ questions at oral argument can determine whether you win or lose.

By Stewart Edelstein

How you answer judges’ questions at oral argument can determine whether you win or lose. Here are some tips for mastering your answers:

  • Think before you answer, even if means taking a moment to pause.
  • Answer the question asked, not the question you wish the judge asked. If it calls for a yes or no answer, say yes or no, followed by an explanation that supports your theme for the case.
  • Answer the questions; do not evade a question, say “I’ll get to that later,” or defer answering in any other way.
  • Whenever possible, weave your theme into your answer.
  • When answering, make sure you state the facts and legal propositions correctly. Any misstatement of fact or law erodes your credibility as to everything you say in oral argument, and everything in your memoranda to the court.
  • If you make an erroneous statement during oral argument and realize it, correct your mistake at the earliest opportunity during oral argument.
  • Do not argue with the judge. Judges sometimes build a premise into a question you may disagree with. If so, with respect, state that you disagree with the premise, but even if the premise were so, explain why you still win.
  • Don’t allow yourself to be pressured into retracting a position you know is valid or conceding something you should not.
  • Never suggest that a judge’s question is off the mark or of no consequence.
  • Never interrupt a judge. No exceptions.
  • If it appears that you are losing ground in an argument, consider offering an alternative argument that the judge may find more persuasive. This requires careful thought and planning well before the day of oral argument.
  • Be respectful in giving answers, but not obsequious.
  • Engage in a dialogue, more like a conversation than a debate. Be spontaneous, engaging, and forthright.
  • When answering a hypothetical question, make sure you understand it. Seek clarification if you do not. Determine what in the hypothetical distinguishes it from your case. Answer the question based on the hypothetical, and then distinguish it from your case, as appropriate.
  • If you get an unexpected question, stay calm. You know your case better than anyone. You are prepared. Ask yourself: How can I tie my answer into the theme of my case? Give the best answer you can and move on.
  • If you don’t know the answer, say “I don’t know,” and offer, with the court’s permission, to provide the answer after oral argument, with a copy to opposing counsel.

Learn from oral arguments you observe, but be yourself when you argue. Do not attempt to adopt a persona that is not you. It won’t work.

 

Stewart Edelstein, who taught clinical courses at Yale Law School for 20 years during his 40-year career as a trial lawyer, is the author, most recently, of How to Succeed as a Trial Lawyer, 2d ed. (ABA 2017).


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