13.8 WORD USE
Although the model for an oral argument is a conversation rather than a speech, in most cases it will be a more formal conversation than you are accustomed to. Because most law students have never seen an oral argument before law school, some may imitate lawyers’ oral presentations that they have seen on television.
Unfortunately, these presentations are almost always set during trials, such as opening and closing arguments, and the guidelines for an oral argument are different. For example, during an opening statement in a trial, counsel for each party may talk about what they will “show”: “We will show you that the defendant was not anywhere near the scene of the crime....” This statement refers to the testimony and exhibits that counsel plans to offer into evidence. It is inappropriate to imitate this language in an oral argument because, even in a motion argument, you will not be presenting evidence. Thus, you will not be “showing” the court anything.Similarly, some students think they sound more lawyer-like if they speak in terms of “contentions,” saying, e.g., “Petitioner contends that the First Amendment does not....” Although this phrasing may have a lawyerly ring to it, most experienced attorneys do not use phrases like this. Announcing what you contend only reminds the court that your statements are merely contentions, rather than the truth. Instead of labeling all of your statements as contentions, just make the statement: “The First Amendment does not....” If you need to, say silently to yourself before you begin to speak aloud, “The Petitioner contends that....”
On a similar note, it is usually more appropriate to refer to the judges or justices by name rather than constantly saying “your honor.” It is not so much that saying “your honor” is wrong; it is just as respectful and more natural, however, to use someone’s name when you know it. Judge Willis notes that “many judges prefer to be addressed by name” and advises counsel to be certain of how to pronounce each name, and of whether the judges on a particular court are styled as “judges” or “justices.”42
Of course, no one expects a flawless presentation.
Just accept that you will probably use the wrong word from time to time. If you have actually misspoken, take the time to correct it: “The Fourth Amendment, excuse me, I mean to say the First Amendment....” Do not bother to correct errors that are not misstatements. I have occasionally seen a nervous student begin a sentence by saying, “I contend that....” I see in his face that he realizes he should avoid referring to himself, so he corrects himself: “I mean the Petitioner contends that....” Suddenly, he remembers that I advised in class against using labels of any kind, and he freezes in dismay. No court will rule against you for a style error. This advice is meant to make your presentation as smooth as possible, but try not to become hypersensitive. Unless you say something offensive, you should just keep going if you make a small mistake. To quote the old adage: “Least said, soonest mended.”