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Tips for Oral Argument in Consumer Litigation

Elizabeth Holt Andrews

Tips for Oral Argument in Consumer Litigation
Heide Benser via Getty Images

Oral argument—whether at the trial level or on appeal—is a crucial inflection point in the life of any case. And when it comes to oral advocacy, consumer cases present their own special challenges. How do you distill a complex set of statutes, regulations, and detailed factual timelines into something clean, clear, digestible, and memorable for your judicial audience? Does the answer change when you’re arguing a dispositive motion at the trial level versus appearing before a panel of appellate judges or justices?

Here are some tips and tricks that I’ve developed in my own practice of consumer financial services litigation. I hope they help you too.


Trial-Level Oral Argument

Appellate-Level Oral Argument

What kind of notes should I take to the podium?

Bring a written list of topics to discuss and major points that you want to hit, but avoid reading from a prepared speech.

On appeal, the concepts that I need to convey orally are often too complex or involved for me to keep in my head all at once, so I take a list of full, written-out sentences to the podium, which I’ve rehearsed many times in advance. I try to address the panel of judges or justices eye-to-eye. But I can always look down and consult my full sentences if I start to flounder and forget the complete concept off the top of my head.

What tone should I use?

Trial judges are always multitasking and typically hear a large motion calendar in any given sitting. Strive for an authentic presentation that is unhurried but concise. Eye contact is important. If possible, try not to overwhelm the judge with extraneous details, and instead provide one to three big takeaways about why your client should win.

The best appellate oral arguments sound like friendly conversations between colleagues (except that the judges are the only ones asking questions!). It’s important to be open to that back-and-forth rather than wedded to a script. I tend to adopt a friendly and collegial conversational style to form a human connection with the panel and help the judges find out what they need to know in order to (hopefully) decide in favor of my client. And try not to grip the podium—you’re not waterskiing! I often hold a pen in order to give my hands something to do.

How do I handle questions from the bench?

If the judge asks you a yes or no question, the first word out of your mouth has to be yes or no. It’s fine if you need to pause to collect your thoughts, and it’s fine to qualify your yes or no with what you say next. But answer the question—don’t hedge.

The same advice holds on appeal—always, always answer the question that the judge asks. If possible, weave your answer naturally into the flow of your argument, and transition back to what you were saying. If that’s not possible, try to take a very brief pause or make a clear statement that you’ve finished answering the question and are now going back to your main list of points.

What about rebuttal?

After your opponent has said his/her piece, if you get another chance to say something, don’t repeat yourself. Stick to responding to what’s gone before.

The appellee often doesn’t get rebuttal, but if you’re the appellant, rebuttal is a golden opportunity not only to address the appellee’s points but also, even more importantly, to give your own answers to questions that the panel asked of your opponent. As you’re listening to your opponent’s presentation, keep a list of what questions the panel asks, and try to come up with your own comments in response.

Any special tips in consumer cases?

Balance simplicity and clarity with rigorous legal analysis. You frequently need to convey complex information in a short period of time, so make every word that you say count.

Know the facts cold. I almost always include a timeline of events, with page cites to the appellate record, in the notes that I take with me to the podium. I’ve won many cases simply because I was able to walk the justices through the timeline of facts step-by-step, whereas my opponent couldn’t.