13.4 PREPARATION OF WRITTEN MATERIALS: WHAT SHOULD YOU BRING TO THE COURTROOM?
At a minimum, the well-prepared oral advocate should bring two things to the courtroom: the briefs that have been filed in the current hearing of the case, and the joint appendix or other record materials that are before the court.
In the unusual (but not unheard of) event that the court should ask you to consider information on a particular page in the record or a brief, you want to have the materials there with you. If there is not enough room at the podium, you may leave them at counsel table so you can retrieve them if needed.It is also appropriate to bring an outline or some form of notes up to the podium, but you should plan to make these materials succinct. Judge Wiener, of the Fifth Circuit, has advised that counsel should not “bring lots of documents to the lectern — shuffling books and papers and reading from them interrupts the flow of your presentation and paints a picture of an unprepared or bumbling advocate.”19
It is the tradition at many law schools for students to use a manila folder for their notes; the students either write their notes on the four sides of the folder, or prepare them on a word processor and tape or staple them in place. The advantage of a manila folder is that it gives the advocate four pages that stay in order even if dropped. Also, four pages is about the maximum number that the oral advocate should try to look at. Many students use the interior of the folder for their main outline; the outer pages contain information about facts and cases to be referred to if needed.
If you want a more professional look, it is fine to use a slim three-ring binder instead of a manila folder. A binder will look better on the way to and from the podium, although the pages may be more difficult to turn. Furthermore, having a binder that allows multiple pages may tempt the advocate to write a more detailed outline, or even to write out the text of the argument.
If you do use a binder, consider adding tabs to make turning the pages easier, and strive to include no more than four pages of notes.Although the anxious advocate may believe that writing out a prepared speech will be a tonic to the nerves, reading from a prepared text is certain to antagonize the court. Supreme Court Rule 28.1 notes, delicately, that “[o]ral argument read from a prepared text is not favored.” Judge Williams has made the point more directly, suggesting that reading the argument hurts both its style and its substance:
The worst thing you can do is deliver a stiff presentation by attempting to read your argument verbatim. Such a presentation style is tedious and makes it difficult for you to answer questions from the bench. If you spend your time looking down at the podium reading your argument, you are likely to miss signals from the bench, and you cannot engage in a dialogue with the judges. Try to argue extemporaneously, or at least leave us with the impression that you are.20
Thus, when preparing materials to bring up to the podium, think in terms of words, phrases, and lists, rather than sentences, paragraphs, or pages. If you write full sentences, you will be tempted to read them because you will presume that a prefabricated sentence will sound better than an off-the-top-of-your-head remark. Remember, however, that the judges expect the oral argument to be, to some extent, a spontaneous dialogue. Most judges would rather hear an imperfect sentence from an advocate who is engaged in conversation with the court than perfect prose from a reader. Watch a few oral arguments on court Web sites, or read the transcripts, and you will see that many effective oral arguments are full of half-finished sentences and apparent lapses in grammar. The best oral argument is a conversation, not a speech.
Write your outline on full-sized paper rather than index cards, and use felt-tipped markers or large, boldfaced fonts to make your points easy to read. List your points in the order in which you plan to address them, and list supporting authorities under each point. You may want to write key words, or even the main phrases-that-pay, in boldfaced type across the top of the outline — or on every page of your materials — so that you have only to glance down at the podium to see words that will remind you of your main contentions.
Some advocates create both a case list and a fact list. On the case list, they list the name, citation, and relevant information (facts, reasoning, etc.) about each case. On the fact list, they list the legally significant facts and relevant background facts that either side might mention, noting where in the record each fact can be found. Creating these lists can be helpful, even if you never consult them during the argument. Both creating and studying them provides excellent opportunities to help you to commit important information to memory.