13.10 SUMMARY
All of this detailed advice may seem overwhelming to the new attorney, but it really boils down to a few points: Know what you’re asking the court to do and what the impact of its holding will be.
Know the facts and authorities behind your case so that you can answer questions about them. Treat the oral argument like a conversation, let the court interrupt you, and be willing to answer all of the court’s questions. Dress and act professionally.You should also know that the most common remarks I hear after a law student’s first oral argument are: (1) “They didn’t even ask me about everything I know!” and (2) “I want to do that again.” You’ll do fine.
Chapter Thirteen Review
1. Select only vital issues for presentation in oral argument. 2. Make sure you know the rule you want the court to apply, as well as the impact of that rule and of your opponent’s rule. 3. To prepare for oral argument, write out a “CRAC” outline of the points you plan to discuss. 4. Make a list of relevant authorities, their citations, and a brief summary of information about those authorities. Studying the list can help you prepare for the argument. 5. Make a list of relevant facts and their location in the record materials; again, studying this list will help your argument preparation. 6. Any outline materials that you bring to the podium should be concise; don’t write out full sentences. 7. Before your first oral argument at a new court, watch or listen to oral arguments (either live or via the court Web site) so that you know local customs and procedures. 8. At oral argument: a. speak respectfully to the court; b. maintain eye contact (don’t read to the court); c. stop talking the instant the court starts to interrupt you; d. listen carefully to questions; e. answer questions directly and then support your answer. 9. You should answer most questions with “yes” or “no,” followed by support that may begin with “but” (as in “but here’s why that seemingly negative thing doesn’t matter”) or “and” (as in “and here’s why that’s such a good point for my side”).
10. If you are the respondent (or the party opposing the motion), try to start your argument with an attention-getting point that shows you listened to the court’s questions of your opponent. 11. Make sure your rebuttal points are tied directly to points made during your opponent’s argument. 12. Speak slowly enough to be understood, or pause between sentences to allow the court to catch up. 13. Remember that the court can see you from the moment you enter the court room until the moment you leave. React appropriately (usually, that means don’t react) to their questions and to your opponent’s arguments.1 See, e.g., Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. Rev. 567, 567 (1999). 2Id. at 568. See also Jacques L. Wiener, Jr., Ruminations from the Bench: Brief Writing and Oral Argument in the Fifth Circuit, 70 Tul. L. Rev. 187, 189 (1995).
3See Myron H. Bright, The Power of the Spoken Word: In Defense of Oral Argument The Power of the Spoken Word: In Defense of Oral Argument 33 (1986).
4Judge Stephen J. Dwyer, Leonard J. Feldman & Robert G. Nylander, Effective Oral Argument: Six Pitches, Five Do’s, and Five Don’ts from One Judge and Two Lawyers, 33 Seattle U. L. Rev. 347, 347 (2010).
5 Commission on Revision of the Fed. Court Appellate Sys., Structure and Internal Procedures: Recommendations for Change, 67 F.R.D. 195, 254 (1975) (quoting Justice Brennan’s comments at the 1972 Third Circuit Judicial Conference) (quoted in Lawrence W. Pierce, Appellate Advocacy: Some Reflections from the Bench, 61 Fordham L. Rev. 829, 833 (1993)).
6 Bright, supra note 3, at 36. 7Pierce, supra note 5, at 833-34.
8 Ginsburg, supra note 1, at 569. See also Wiener, supra note 2, at 199 (noting that oral argument “further crystallize[s] the issues [and enhances the court’s] understanding of the factual and legal details, subtleties, and nuances of the case”).
9 See, e.g., Karen J.
Williams, Help Us Help You: A Fourth Circuit Primer on Effective Appellate Oral Arguments, 50 S.C. L. Rev. 591, 595 (1999). 10Id. 11Judge David M. Gersten, Effective Brief Writing and Oral Argument: Gaining the Inside Track, 81 Fla. B.J. 26, 29 (Apr. 2007). 12See, e.g., Williams, supra note 9, at 594. 13See, e.g., id. at 598. 14See 1994 U.S. Tr. Lexis 163 at *45-46 (Nov. 30, 1994) (U.S. Sup. Ct. Oral Argument Tr.). 15Patricia M. Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 19-20 (1999). 16Williams, supra note 9, at 597. 17Ginsburg, supra note 1, at 569. 18Williams, supra note 9, at 599. 19Wiener, supra note 2, at 204. 20Williams, supra note 9, at 598. 21Wiener, supra note 2, at 203. 22Because the United States Supreme Court has never had a Chief Justice who is a woman, the Court has no protocol for addressing a female Chief Justice. Some students who are faced with a female Chief Justice in a Moot Court setting address her as “Madame Chief Justice.” While this may be acceptable, resorting to a foreign language strikes me as odd. Alternatives could include addressing the Chief by name, or by the title without the gender designator. Thus, either say, “Chief Justice (with a nod to the Chief), and may it please the Court,” or, e.g., “Chief Justice Sotomayor, and may it please the Court.” As always, you may want to let local custom dictate your decision. 23Wiener, supra note 2, at 201, 203. 24Williams, supra note 9, at 598. 25Internal Operating Procedures, U.S. Court of Appeals for the Third Circuit 1.1 (effective 2018), available at http://www2.ca3.uscourts.gov/legacyfiles/IOPs.pdf. 26Id. at 1.2. 27For more information on making your conclusion effective, see Section 14.5.3. 28See Richard H. Seamon, Preparing for Oral Argument in the United States Supreme Court, 50 S.C. L. Rev. 603 (1999), for advice on preparing for oral argument primarily by anticipating and planning answers for the Court’s questions. 29Ginsburg, supra note 1, at 569. 30 Judge Bruce D. Willis, Suggestions from the Bench: Things Judges Wish That Appellate Lawyers Would Do Differently, 35 Wm. Mitchell L. Rev. 1281, 1285 (2009). 31Williams, supra note 9, at 599. 32Ginsburg, supra note 1, at 569. 33Williams, supra note 9, at 599. 34See Gersten, supra note 11, at 28 (noting that one of the two most common oral argument mistakes is “not listening to the judges’ questions and the tenor of the discourse”); see also Dwyer, Feldman & Nylander, supra note 4, at 348-51 (identifying common categories of questions and describing how to deal with them effectively). 35Williams, supra note 9, at 599. 36See also Gersten, supra note 11, at 29 (“Answer the question honestly, even if you are afraid this might hurt your case. There is nothing worse than losing credibility with the court.”). 37See also id. (“If you do not answer the question directly, or if you become evasive, the judge will find it difficult to listen to your argument because he or she will still be thinking about the unanswered question.”). 38Williams, supra note 9, at 599. 39Dwyer, Feldman & Nylander, supra note 4, at 350. 40Ginsburg, supra note 1, at 569-70. 41See, e.g., Wiener, supra note 2, at 199, 202. 42Willis, supra note 30, at 1284. 43Wiener, supra note 2, at 205.