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Five Tips for Appellate Oral Argument

Joshua Franklin Kahn and Laura A. Cellucci


  • Know your audience by researching the background, judicial leanings, and prior opinions of the panel judges.
  • Understand the rules and expectations of the forum, including dress codes, addressing opponents, time management, and tracking remaining time.
  • Identify and address the weaknesses in your arguments and be prepared to answer questions directly.
  • Hit the high points of your arguments while maintaining a moderate pace during the limited time allotted for oral argument.
Five Tips for Appellate Oral Argument
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Oral argument in an appellate court represents a critical moment in every case. The briefs are written, and the panel may already be leaning towards a decision. Oral argument, therefore, is an opportunity to cement the panel’s decision in your favor, or perhaps your final chance to save your case. To say the least, it is a pressure packed inflection point in the life of a case. Thorough preparation, however, will relieve some of this pressure.

Below are five important tips to help you prepare for and present effective appellate oral argument (which the authors assembled immediately after delivering oral argument before an en banc panel of the Delaware Supreme Court):

  1. Know your audience. Familiarize yourself with the panel hearing the appeal. Gain insight into backgrounds and judicial leanings of each judge. Watch your judges in recent oral arguments in other cases, and read prior opinions. Often, a prime source of insight will come from former clerks. At a minimum, consult with counsel who have appeared before the judges on your panel.
  2. Know your forum. Familiarize yourself with the applicable rules—written and unwritten. How are you expected to dress? Some forums still maintain strict, traditional dress codes. How are you expected to refer to your opponent (e.g. “Mr./Ms. ___,” “Plaintiff/Defendant’s counsel,” “Appellant/Appellee’s counsel,” “My friend,” etc.)? How do you reserve time for rebuttal, and how do you track the time remaining during your argument? If arguing in a forum for the first time, be sure to consult with experienced, local counsel and watch oral arguments.
  3. Know your weaknesses. Perhaps more important than memorizing the high points of your arguments in your appellate briefs is recognizing your weaknesses. Prepare for the panel to ask questions that probe the weaknesses and limitations of your theories, and identify the responses that are logical, persuasive, and keep the panel with you on the most critical issues.
  4. Answer the question. When your position prompts a question from the panel, answer it directly. When you finish your answer, confirm with the judge whether their question was sufficiently answered. This approach assists the panel in analyzing the issues (the question was posed for a reason, after all) while enhancing your credibility. An evasive response, on the other hand, is both unhelpful and tips the court to a problem in your case that you are trying to hide (which will only shine a brighter light on the issue).
  5. Hit the high points without sacrificing pace. Appeals often raise numerous complex issues of law and extensive records produced from years of litigation. Yet each side is typically given between 15 and 30 minutes to present their arguments and rebut their opponents’. Speaking like an auctioneer to address every point is not the solution. Instead, aim to hit the high points of your arguments while maintaining a moderate, rhythmic pace that can be easily followed. This applies to rebuttal, too, where the tendency is to speak fast to address as much of your opponent’s oral presentation as possible in the few minutes reserved. Inevitably, certain arguments and issues will not be raised at oral argument. Not to worry: those issues will have been sufficiently addressed in your brief.