Published in Forum 8, Eighth Judicial Circuit Bar Association, Inc. Newsletter, Vol. 72, No. 2, October of 2012
Last month we reviewed some tips to help make your appellate brief easy to read and engaging for the appellate judge. This month, we will review some tips to enhance your oral argument. While I believe that the brief is the most important part of the appeal, oral argument can help you bring the win home. If you do have oral argument in your appeal, here are some tips:
- Don’t read from a script like a parrot. Prepare a simple reference sheet of bullet points, to refresh your memory if you get off track, and converse with the judges. Know your argument well enough that you can talk about your position without having to constantly refer to your notes. Also be flexible enough in your presentation to answer questions and respond to the opposing party’s argument. Oral argument is not for your benefit. It is intended to help the judges understand your argument. You are there for them. Engage in a conversation – answer their questions and use that time to gauge their concerns about your argument. You may have to completely disregard your prepared points in order to respond to comments made by opposing counsel or concerns raised by the judges. You need to pay attention to the comments made and the judges’ body language and reactions. Observe and listen. Make eye contact. The key word here is “conversation.” Converse with them. You are there to educate them on your position and resolve their concerns. Don’t get defensive or offended by their questions. Educate them on why you have the winning position.
- Be honest and knowledgeable about the applicable law. If there is contrary law to your position, don’t hide from it. Admit it, discuss it, and explain why it is distinguishable. You will gain credibility and then you will have time to move forward to discuss the law that will cancel out the negative. You need to be well-versed in the applicable law and present yourself as a reliable expert on the issue. Understand the policies behind the law. Your goal is to help give the appellate panel confidence in your position. The same is true of negative facts: admit them, discuss them, and explain why, despite such facts, you should still prevail.
- Focus on and emphasize a theme for your position. Do not get up to the podium and simply reiterate the facts or background of your case. Start off strong with a theme that is accurate and memorable – a theme you should have used in your brief. You have limited time in oral argument so engage them from the beginning and spark their interest in what you have to say. Ask yourself, “why should the court rule in your favor?” Is there a substantial policy at stake? Why should your argument interest them? Oral argument is your last chance to make an impression. Make it count.
Lastly, if you are asked a question you simply cannot answer, don’t hesitate to ask the court for permission to follow-up with a supplemental filing and, if granted permission, do so promptly while the argument is still fresh in their minds. The important thing to remember is that you should never dread the questions from the judges. You should invite and embrace them as an opportunity to educate and persuade them to your position. Even if you don’t win your appeal, these tips will help you obtain credibility with and respect from the court, which may prove invaluable the next time you are arguing a case before them.