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After the Bar

Practice Areas & Settings

Oral Argument Preparation from Both Sides of the Bench

Andrew Martin Jacobs

Summary

  • How will you make the best oral argument? There is no right answer to that question, but here are nine tips based on 30 years of practice and a year and a half of appellate judging.
  • What are the best points the other side makes? What concerns should a neutral thinker have about your position?
  • Nothing erodes credibility and highlights a lack of preparation more than not knowing the record.
  • Meet hard questions in substance with record support and specific case law discussion, and then pivot, weaving your response into your broader analysis.
Oral Argument Preparation from Both Sides of the Bench
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Jump to:

Oral argument is one of the high points of a newer lawyer’s career. It’s the chance to get out of an office where you perform research or review documents and go to court and argue about what relief your client should get. If the argument is in a court of appeals, you are either defending your client’s hard-won victory before a trial court or, more dramatically, seeking to overturn a result your client may view as deeply unfair and burdensome. Either way, to paraphrase both ancient philosophers and Marvel’s Spider Man comic, with great power comes great responsibility. How will you make the best oral argument on that exciting and important day? There is no single right answer to that question, but here are nine tips based on 30 years of practice and a year and a half of appellate judging.

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!

Author Note: Andrew Jacobs is an Arizona Court of Appeals Judge for Division One. The views expressed herein are his personally and not those of his court.

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