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How to Prep Like a Pro for Your First Oral Argument in Federal Court

Karen L Stevenson


  • Five practical tips to help you hold your own in front of the federal bench.
  • The court may not rule in your favor, but with the right preparation, you can avoid “rookie” mistakes and shine like a veteran.
How to Prep Like a Pro for Your First Oral Argument in Federal Court
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You just learned that the federal judge in your case will hold oral argument on your pending motion, but you have never appeared in federal court before. Whether it’s your first year or your fifteenth, your first oral argument in federal court can seem intimidating. Here are practical steps to help you make a successful appearance before the federal bench. I cannot promise that the court will rule in your favor, but with the right preparation, you can avoid “rookie” mistakes and shine like a veteran.

Step 1: Know the Rules

Success begins long before you make your appearance—even before you write your brief. It begins with knowing the Federal Rules of Civil Procedure. What are the filing deadlines? How long will you have to prepare your opposition? What are the page limits for your brief? Did you meet and confer with opposing counsel before filing your brief? Does your notice of motion include a signed certification confirming that you have satisfied the meet-and-confer requirement?

There are federal rules that answer each of these questions. Know them before you file. If you don’t, the clerk of court or the judge’s chambers staff could well reject your filing entirely. While many state civil rules are similar to the federal rules, do not assume that to be so.

Besides the federal rules, each district court has local rules. These are typically available on the district court’s public website. Individual judges also have their own procedures that are set out in their case management orders. These are sometimes referred to as “local local rules.” You need to know these as well. For example, many district judges hear law and motion only on certain days of the week. Some judges require that motions regarding discovery must be resolved by the discovery cutoff date, not just filed by that date, or that the parties conduct a telephonic conference with the judge before filing any discovery motion. Read your judge’s procedures carefully and keep them handy so you can refer to them throughout the case. And remember: Never file a sur-reply or over-length brief in federal court without first getting the court’s permission.

Step 2: Know Your Judge

Next, you need to know your judge. Look for judicial profiles that may provide insight into his or her background. How does he or she conduct oral argument? Did your judge have an area of specialization before taking the bench? Does your judge write or teach on particular topics? The objective is not to pander to the judge, but to understand what kinds of questions he or she may pose and what issues might be of particular interest when the judge is deciding your motion. Search online to see if the judge has published (or unpublished) opinions on your issues. Ask colleagues in your firm or agency if they have appeared before this judge. Do they have any advice or tips? Make time to go watch your judge on a day when he or she is holding motion calendar.

Step 3: Know Your Opponent’s Papers as Well as Your Own

Oral argument is not an opportunity to simply re-recite what is in your brief. The fact that the court is holding oral argument suggests that there is something in the parties’ arguments that the court wants to explore further; otherwise, the motion could—and likely would—be decided on the papers. So resist the temptation to write out a summary of your brief to read to the court. Instead, outline your argument and start with your strongest argument and most salient authorities and evidence. If possible, moot your argument before a group of colleagues and ask them for frank feedback.

The adage “the best offense is a good defense” is as true in lawyering as it is in sports. Review all of the moving papers, yours and your opponent’s. Start with your opponent’s brief and consider why the court might rule in their favor. Yes, that’s right, see the issues from the opposing viewpoint and be prepared to structure your oral argument to tackle those issues that are most problematic for your side. Acknowledge your side’s weaknesses and confront them.

Read the key cases thoroughly. Remember, district courts are not bound by decisions of other district courts. If you are relying on unpublished authorities or authorities from another jurisdiction, emphasize why these authorities are persuasive. You may find it helpful to have copies of the key cases cited by both parties highlighted or tabbed on your tablet device or in binders, if you prefer the old-fashioned way. Finally, if you are presenting any digital evidence, clear that with the court first and make sure you are familiar with the presentation technology.

Step 4: A Picture is Worth . . .

Technology can be a powerful tool to enhance oral argument. For example, if the chronology of events is important, it could be helpful to the court to have a timeline on either a PowerPoint slide or an overhead projection system as you present your argument. Or if your argument involves complex transactions, technical components, or multiple parties, visual depictions or graphs can assist the court in understanding how these elements fit together. But a note of caution: Do not belabor your argument with elaborate PowerPoint slides with case citations or summaries. Keep the visuals simple.

Check with the court in advance if you plan use such visual aids during oral argument. In some districts, there are specific court staff who are available to train attorneys on how to use the courtroom presentation systems so you aren’t fumbling with the technology on the day of. If you are going to use technology during your argument, it should be a help, not a hindrance. Your job is to be persuasive. Everything you do should be designed to help the court grapple with the pertinent facts and legal issues. Finally, be sure to bring along a hard copy of your presentation materials to give to the other side.

Step 5: Answer the Question

When you stand to make your appearance, speak clearly and don’t rush. Federal court tends to be more formal that state court. You are expected to stand when you address the court. Address the judge as “Your Honor,” not “Judge” or “Ma’am.” Many judges expect lawyers to speak from the lectern and not from counsel table (another reason to know your judge’s preferences).

If there is a tentative ruling and your side has won, submit! Let the other side do the hard work of trying to change the court’s mind. If there is a tentative and the court is inclined to rule against your client, before you begin, ask if there are particular issues the judge would like you to address. Start there, no matter what you have in your outline.

If there is no tentative, begin your argument as you have outlined it, but when the court interrupts with a question, stop talking. Listen carefully and answer the question directly. Don’t evade or “spin” the issue. Be forthright. Nothing annoys judges more than lawyers who don’t answer the question that was asked. You will gain the judge’s respect for the next battle if you address the issue directly. Oral argument gives you the chance to establish your professional credibility and competence before the judge. With careful preparation and thoughtful, direct responses to the court’s questions, you will make your first appearance in federal court with confidence.