In “Judges Can Read: Argue Without Your Notes!,” Judge Drummond is correct; when asking someone out on a date, you should probably not use notes—if you want the date. But personal settings contrast with professional ones: “When you visit your physician, do you want her to rely on her memory for what her findings were last visit?,” questions Joel Cohen in In Defense of Lawyers Taking Notes. Oral advocacy is more nuanced than the latest pickup lines.
October 24, 2022 Practice Points
Lawyers Can Read: Argue With (Some) Notes!
Using an outline for oral advocacy puts clients in the best position to succeed
By Kyle R. Kroll and Steven E. Vogel
Judge Drummond aptly emphasizes that lawyers should not overly read from notes. Although legal wunderkinds can deliver 22 transcript pages of impromptu oratory, the benefits of memorization are limited, whereas the risks are substantial. In fact, most successful lawyers use notes of some kind. This article builds on Judge Drummond’s suggestions and offers tips to utilize notes effectively.
Your Brain Needs Notes, and Your Clients Do, Too
Why might notes be necessary? Biology. Every lawyer’s capacity for memorization peaked before passing the bar. “The brain’s volume peaks in the early 20s and gradually declines for the rest of life. In the 40s, when many people start to notice subtle changes in their ability to remember new names, the cortex starts to shrink,” describes Jules Epstein in Should You Use Notes During a Closing Argument. This biological limitation “counsels heavily against” court presentations “without notes of some sort,” he explains.
Furthermore, ethical duties may require using notes to both provide accurate information and protect client interests. For example, using exact quotes or citations can be necessary for accuracy or to preserve the record and protect the right to appeal, illustrate Hon. Nancy Vaidik and Rebecca Diaz-Bonilla in Point Well Made: Persuasive Oral Advocacy.
Strike the Right Balance
Judge Drummond and scholars almost universally agree that the best advocates balance scripting and memorization. An outline, somewhere in between the two, offers several key benefits.
An outline prevents “reading back the brief,” a common pet peeve. Attorneys should establish a personable connection through eye contact, but not too much. An outline provides a natural excuse to break eye contact, while still maintaining it 70 percent of the time, advise Vaidik and Diaz-Bonilla. In Trial Advocacy: Planning, Analysis, and Strategy, Marilyn J. Berger, et al., urge having an outline “near a cup of water so that you can take a sip and glance at them.” And “a glance at such notes during the argument will serve as a reminder of the next point to be made…[or] a document to be used,” notes Theresa Nelson in Polishing Your Argument.
An outline also requires the advocate to structure key points but learn the details. “Outlining forces the advocate to internalize his or her arguments, such that notes may not even be necessary, explains Thomas H. Boyd, Minneapolis, MN, past board member of the ABA’s Council of Appellate Lawyers. This can transform the hearing into a conversation: “The best advocates view the argument as a dialogue with the judge,” comments Michael E. Gans, et al., in the Eighth Circuit Appellate Practice Manual. An effective outline, combined with practice, allows for “delivery ‘with an air of spontaneity,’” writes Steven Lubet in Modern Trial Advocacy.
Scholars almost universally agree that the best advocates balance scripting and memorization.
While an outline is useful, “slavish adherence to it is not,” advises Gans. The lawyer should “read the room,” using the outline as a “lifeline” as needed, recommends Irving Younger in The Irving Younger Collection.
There’s No One-Size-Fits-All Approach
What kind of outline is best? It depends. Here are several common options:
- The Standard: Outline key points over several pages. Use large font, bolding, underlining, and different colors to prioritize or separate information. “But remember: less is often more. The outline should be sparse enough to locate the relevant topic…and facilitate reordering” as needed, counsel Stuart Segrest and Matthew Cochenour in Getting Ready for Oral Argument.
- The One-Pager: Using large print, list the main points in order. Some advocates use pictures, a keyword, or memorable quotes to activate their memory as they go. These signals are like a written blueprint to Judge Drummond’s “memory palace.”
- Notecards: Use index cards, notecards, or sticky notes with key points listed and stacked in order. One could also print information on standard paper, then cut, rearrange, and attach to new paper. These can be carried, when the well is available.
- Charts: When there are many key facts or cases, a chart may be advantageous. For example, each fact or case can occupy its own row, with columns identifying citations, rebuttal evidence/points, and related authorities.
Creating an outline is merely the first step: “Regardless of whether a lawyer prepares a script, a detailed outline, [or] a skeletal outline…the advocate must practice, and practice again,” states Gwen J. Samora in Oral Argument Tips for Trial Lawyers—Aim for the Good, Avoid the Ugly.
Outlines Are Not Cheating
Although jokingly characterizing notes as “cheating,” Judge Drummond’s advice overlaps with the research and suggestions above—eye contact, thoughtful preparation, repeated practice, purposeful structure, and flexibility. Armed with an effective outline, the prepared advocate places the client in the best position to succeed.
Resources
- H. Mitchell Caldwell, et al., “The Art and Architecture of Closing Argument,” 76 Tul. L. Rev. 961 (2002).
- Alfonso M. Saldana, “Beyond the Appellate Brief: A Guide to Preparing and Delivering the Oral Argument,” Fla. B.J. (May 1995).
- F. Lee Bailey and Kenneth J. Fishman, “Do Not Use Notes,” 2 Criminal Trial Techniques § 57:8 (2022).
- Timothy J. Storm, “Oral Argument Notes,” 2 Illinois Appellate Practice Manual § 33:11 (2022).
- William E. Wegner, et al., “Presentation of Closing Argument,” California Practice Guide—Civil Trials and Evidence, ch. 13-E, § 1c, 13:351 (2022).
- Jared K. Carter & Lauren Bishop, “Oral Argument and Advocacy: Practice Ready Tips,” Vt. B.J. (Spring 2016).
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