Five Tips for Preparing and Delivering an Effective Appellate Oral Argument

Remember moot court in law school? Appellate oral argument is fundamentally similar, in terms of formalities and overall tenor of the proceedings. The stakes, though, are much higher and the outcome potentially permanent. Preparation is imperative.

Oral argument is scheduled, typically upon request, after all briefs have been submitted. Some appellate courts require appearances to be virtual in accordance with local health emergency mandates.

Whether your appearance is virtual or in-person, here are some pointers gleaned from a recent appeal to help you prepare for and deliver your appellate oral argument.

1. Add value to your filed briefs. Your panel has read the record and may already have certain leanings. They are not looking to hear mere brief excerpts at oral argument. While oral argument is not the place for you to reinvent the wheel, there is always room for creativity. Find a fresh spin on one of your theories. Address your opponent’s critical argument a little differently from how you did so in your briefs, but in a manner that keeps your overall position coherent. Be creative.
2. Frame your issues. Whether you are appellant/petitioner or appellee/respondent, your presentation should frame the dispositive issues and the legal standards by which the court should decide them. Do not limit your issues to your strong points. You must address your vulnerabilities and explain how your desired outcome remains viable despite them. The situation would, of course, be different if the court released a tentative decision or indicated how it was leaning on an issue prior to argument as some courts do, which can be a rarity. If there is a tentative decision, your issue-framing objective becomes to respond appropriately to the tentative view of the panel.
3. Less is more. Narrow an eight- or even ten-point brief to no more than three dispositive issues. Depending on the court, you may be allowed a maximum of 30 minutes for your presentation, including rebuttal. That is not a lot of time when you factor in the panel’s questions. And you want the justices to talk to you. The easiest way to lose your panel’s interest is to overwhelm them with a plethora of issues in an attempt to cram 50 pages of briefing into a 15-minute presentation. Focus on pivotal questions.
4. Signpost your arguments. Signposting, presenting the “headlines” of your oral argument points at the beginning, demonstrates preparation and structure. It allows the panel to start processing your arguments even before you provide the details. It also gives them the opportunity to change the order of your presentation to steer you in the direction of issues that matter to them. If you are running out of your allotted time, the panel may ask you to move on to your next point that you signposted, and that is your cue that the next point is critical and deserving of adequate treatment. Signposting works.
5. Questions always take priority. Do not be married to your prepared speech or outline. Think of it as a flexible framework, subject to change as the panel deems fit. Once any panel member starts asking questions, engage. Read the room. If the panel wants you to address one particular issue at length, then drop the speech, and spend as much time as necessary on that issue. It might be the last piece of the puzzle the panel needs to reach your desired outcome.