One Attorney’s Process for Preparation
Know What Argument Is
My preparation process was driven by my view of an argument: a brief chance to help the panel finalize its views of the case by speaking credibly to it from my side’s perspective. This requires addressing the panel’s concerns with our analysis and having precise record cites and case law ready to support our premises (or undermine the other side’s).
It’s All About Analysis
The starting point is analysis. You’ve written your best brief. But looking at the complete briefing, what are the best points the other side makes? What concerns should a neutral thinker have about your position? Talk through these points conversationally out loud. It doesn’t have to be formal. You can do this in the shower, driving to work, or talking to yourself on a run. In explaining your positions, find where you can give ground while explaining why your analysis should ultimately control the argument.
Turning Your Thinking into an Outline
One great tool for preparation is a short outline of all of those major points of analysis. Mine was always reduced to one page on a legal pad (like a final outline for a law school exam). I would integrate under Roman-numeral headings the few major issues—my anticipated presentation, but annotated with the record cites and short explanations I had to know cold and hints at my responses to tough points. As with law school outlines, the goal is to know the outline’s contents so well you don’t have to look at it.
Pitfalls in Preparation
Not Knowing the Record
Nothing erodes credibility and highlights a lack of preparation more than not knowing the record. So, review your analysis closely and determine what might come up record-wise. Lawyers who repeat and rely on their briefs and depict the record in a general, conclusory way waste the argument. Don’t just prepare a general characterization of key record excerpts—be able to repeat a keyword or quote verbatim, referring to a transcript page or record item as appropriate. Show your mastery of this record and make yourself a reliable narrator. That doesn’t mean the court will do whatever you say, but you become a helpful partner in the panel’s discussion when you know the record.
Being Caught Flat-Footed
As long as questions can surprise advocates, there is a danger of awkward dead time in argument. So practice responding to unfriendly, critical, or unexpected questions through moot courts with others, if possible. If you can’t do a moot, interrogate your position by answering questions and stitching specific references to record materials. Get used to this arc: meet hard questions in substance with record support and specific case law discussion, and then pivot, weaving your response into your broader analysis.
Argument Is a Conversation, Not a Script
Don’t rely on a script. That keeps some advocates from communicating helpfully. Don’t think of argument in terms of points you must make, but instead, sets of concerns you can share with the court.
Perspective from the Bench
Answer the Question—But in a Way That Fits with Law
In our court, as in many, we have a draft potential decision that arguing counsel hasn’t seen. Our questions are the only clues to what we want to resolve in the matter before us. So when we start to ask, stop and listen. When you answer, meet the question squarely—and only then explain other points necessary to flesh out the answer. Help the panel see how your proposed resolution not only allows you to win but also preserves consistency within the law. Make sure your answer isn’t just “I win,” but is ideally, “Here’s how this outcome fits truly with existing law and makes good law for future cases.”
Engage in the Other Discussion
Appellees go second. So before they speak, they hear the judges’ concerns and the other side’s best shot at reversal. If, as an appellee (or an appellant in rebuttal), you can provide a rebuttal beyond what was discussed in the briefs, that’s a big help. You may appreciate that some critical fact or point was conceded in a way the panel won’t. Without awaiting questions aimed at your position, discard your script and enter the conversation that just occurred, showing how it really helps you.
Don’t Give Away Victory
If the panel is with you, as indicated by friendly questions (or the lack of questions), don’t feel compelled to use all your time. On occasion, advocates trip over a concern no one was asking about. Sitting down if there are no further questions is often very wise.
Finding your own approach to argument requires experience and synthesizing what resonates with you from the guidance of others. I hope some of these suggestions resonate with you—happy arguing!