Effective oral advocacy is one of the most powerful weapons that an attorney can employ for their client. While there are things that attorneys can do to help develop their oral advocacy skills, there is no real substitute for getting practical experience arguing before courts or other tribunals. It is, therefore, critically important for junior litigation attorneys to actively seek out and maximize opportunities to practice their oral advocacy skills, which are essential to their career development and advancement.
Finding chances to get into court is easier said than done, as opportunities to address important issues in a case are usually reserved for more senior attorneys. Clients often expect even the run-of-the-mill motions to be handled by a partner-level attorney. Accordingly, it can be difficult for newer attorneys to get meaningful opportunities to develop their oral advocacy skills. Further complicating the issue, courts are increasingly issuing decisions on motions and appeals solely based on the parties’ written submissions. The corresponding decline in oral argument opportunities has reduced junior attorneys’ opportunities to practice their oral advocacy skills.
So, what’s a junior attorney to do? The first step is to ensure you seek opportunities to be in the courtroom. From there, capitalize on those opportunities. As always, tailor this advice to your individual tendencies and do what works best for you.
As the old sports adage goes, the best ability is availability. The same remains true regarding getting opportunities to get into the courtroom. Early on in your career (or while settling into a new firm), you may not be the first choice to cover a hearing simply because you are not yet front of mind. By being available and ensuring that people know you’re interested in getting time in court, you help set yourself up for success.
With many firms still operating on a “hybrid” model, being “available” doesn’t necessarily mean being in the office at your desk. You can convey availability when you’re out of the office by responding to calls and emails. For example, if a partner is under pressure and looking for someone to cover a hearing the next day, there’s a good chance that they will reach out to multiple people, and often, the first to respond will be the one who gets the work. It will be difficult to get new opportunities if you’re not available (or, equally as important, not perceived as being available).
It’s unlikely (but not impossible) that the first opportunity you’ll get will be to argue a big summary judgment motion or handle an appeal before a court of last resort. You must be creative and open-minded when thinking about ways to get yourself in the courtroom. For example, pro bono work can be a great place to get substantive, practical experience early on in your career—in addition to giving back to your community and meeting your professional responsibility requirements. Don’t look down on more mundane motions or internal presentations. Remember, every chance to make an oral presentation is a proving ground. While a motion to amend or extend a scheduling order may not feel like a significant opportunity, you’re developing skills to help you succeed.
When it comes to seeking opportunities, you are always going to be your own best champion. It is important to be vocal and make sure that those around you know that you would like more opportunities to practice your oral advocacy, including the attorneys you work with, as well as less direct or more informal resources. For instance, if you have a mentor, make sure they know you’re looking to get some on-your-feet experience—hopefully, they’ll share that information and help create openings for you. If your firm has a formal review process, this can be a great time to share your goals for your professional growth—like wanting more opportunities to argue or to argue more substantive motions. If you push for yourself and make your goals known, you will have a much better chance of being recognized when an opening presents itself.
Many available resources present varying viewpoints on how to approach oral advocacy. Whether you want to focus on the broad strokes of an argument or dissect the finer points might depend on the opportunity itself. Focusing on your court, preparation, and practice should help you to make the most of your opportunities—regardless of your personal approach to argument or the outcome.
It’s extremely important to know the practices of the court that you’ll be appearing before. If you haven’t already been in front of a particular court or judge, try to observe a hearing session, so you have a better feel for how they operate. Following COVID-19, many courts still provide some form of remote access to hearings, meaning that you don’t necessarily have to spend a whole day in court to learn the playing field. If that option isn’t available, try to reach out to other attorneys you know who have been before the court—or, if you’re practicing outside your home jurisdiction, ask local counsel. While not necessarily substantively important, being comfortable with any procedural quirks followed by your court will make you more comfortable and allow you to focus on the merits of what you have before the court. It also shows a level of professionalism, respect, and decorum that judges may well expect from those appearing before them.
There is no single trait that will help you to be successful—and to earn the respect of your colleagues, foes, and the court alike— more than being well-prepared for the issue that you are arguing or presenting. A good oral argument does more than just restate the position set forth in your papers; it should be a conversation with the court. To engage in that conversation, you must be comfortable with the case, the law, and the issues. To be sure, there can be conflict between the time a client is willing to spend to prepare for a motion and the time it will take you to be well prepared. While you should be cognizant of the appropriate amount of time to allocate for preparation, it is better to be well prepared and put some of your time into “professional development” or something similar than to show up underprepared and unable to engage with the court. While preparation can be menial and time-consuming, it is the single most important factor that is wholly within your control. As the saying goes, failing to prepare is preparing to fail.
The value in getting the opportunity to practice your oral advocacy won’t necessarily be in the outcome—in fact, sometimes you’ll argue a position that you, the partner, and the client all know you’ll lose. The value comes in what you take away from the experience: how you get better, what you learn, and how you implement those lessons in the future. To experience continued success, you will need to be able to adjust. What worked with one judge (or jury) on one day won’t necessarily carry the day with another. Don’t let yourself get caught up in losing (or winning) one motion because many factors go into judicial decision-making, some of which are simply out of your control. If you can take a loss and become a better oral advocate—and, in turn, attorney—then the experience was nonetheless still valuable. Take the time to identify what you can learn without dwelling on what could have been.
Ultimately, oral advocacy is a skill that, like any other skill, requires practice, repetition, and hard work. While we all have varying levels of natural ability, those willing to “hit the gym” and develop their skills will see the best results.
