Five Tips for Oral Argument

Oral argument is an important aspect of an appeal. It is your opportunity to educate a panel of three judges about the key issues on appeal and to answer any questions or doubts that the judges may have. Here are five tips for an effective oral argument.

Tip No. 1: Do Not Waive Rebuttal Time in Advance

Although you may think you know your opponent’s arguments and plan to address them in your presentation, a judge may ask a question that you can address favorably for your client. Use rebuttal time to do this. You can also use rebuttal to address any misstatements by counsel or the court.

However, be professional and courteous to the court and the opposing counsel. If you disagree with a statement of counsel, be respectful in your manner of correction, and then move on. 

Tip No. 2: Do Not Read Your Brief to the Court

Reading from your brief should be unnecessary. Focus on the key legal issues and engage the court. The court is not there to listen to a speech.

Tip No. 3: Know Your Panel

Once you learn who will be on your panel of judges, research their style at oral argument so that you can be prepared. Be prepared for questions, and practice how to address pointed questions in the best manner possible for your client. Ask your colleagues to assist by participating in a mock oral argument.

Tip No. 4: Listen to the Court

Anticipate that you will be asked questions. Don’t dodge questions in favor of what you want to say. If you are asked a question, listen carefully and answer. Assume that the court has a reason for its question. If you don’t know an answer, say so. It is better to be forthright. In that regard, if you must concede a point, do so.

Tip No. 5: Know Your Record

Some appeals are fact-intensive, and some are not. Either way, be prepared to cite to the record even if those cites are already in your appellate brief. If the court expresses concern about a factual issue or a ruling, assist the court with a citation.

Conclusion

Oral argument is an opportunity to further your client’s position. Use your time wisely and be a good advocate.

To learn more about oral argument, consider taking a continuing legal education (CLE) course or watching an ABA roundtable (live or recorded). An ABA roundtable about oral argument took place on December 10, 2020, called “Fundamentals of Oral Advocacy on Appeal.”