Oral Argument: A Guide to Preparation and Delivery for the First-Timer
There’s a first time for everything. But when it’s your first oral argument in an appellate court, the task ahead can seem overwhelming. Your every word will be scrutinized. A single stray statement could mean, for your client, the difference between victory and defeat—and, for yourself, the difference between a promising professional trajectory and something quite different. The 10 tips below comprise a step-by-step guide for preparing and delivering oral argument for the first time. By following them, you’ll not only survive, but likely enjoy, your time at the podium—and perhaps even come back for more.
Know the materials cold. Your goal is to know every single thing about your case before you appear before the panel. That means reading, and re-reading, and re-reading again, the briefs until you’ve memorized every argument—yours and your opponent’s. It means reviewing every case cited in the briefs, and knowing every detail of the most important cases: their facts, their reasoning, their outcomes, and how they support your position or don’t support your opponent’s position. It means poring over the record until you know every last critical fact, and where it is located. Sounds daunting? It is. Sounds time-consuming? Correct. But there is no substitute for putting in this time and effort, which should begin at least several weeks before your argument. As the saying goes: If you fail to prepare, you prepare to fail.
Talk about your case out loud. Whether you’re three weeks or three hours away from argument, talk about your case out loud. This is oral argument, after all. Up until now, you’ve engaged in only written argument. There are big differences between the two—for example, there’s no delete key when speaking—and you want to get accustomed to those differences well before your actual argument. So: talk about your case. Talk to your colleagues. Talk to your spouse. Most important, talk to yourself—in your office, in the shower, anywhere. When doing so, play out different roles—a judge asking you a question, and you answering that question. Practice jumping from one argument to another argument, or from one issue to another issue. Hear how your written arguments translate into the spoken word, and assess whether a point that sounds compelling on paper needs reworking when it comes out of your mouth.
Prepare answers to your weakest points. As you’re re-reading all the materials and talking out loud about your case, you’ll get a sense for your weakest points. It’s a near-certainty that some of those weak points will be the subject of questions at oral argument. Since you know those questions are coming, prepare your best answers to them ahead of time. For each, write out exactly what you would say in response. Work on your answer until you have a sound bite that you can deliver in fewer than 15 seconds. Write down your sound bite on your cheat sheet. What’s a cheat sheet, you ask? Read on.
Prepare a cheat sheet. The goal of knowing the materials cold and talking out loud is to become fluent in your case, which means having an ability to converse with the judges and skillfully handle anything they throw your way. It also means not relying on your briefs, appendices, or other bulky materials during your argument, which will disrupt the flow of your presentation. Instead, put everything you want to have at your fingertips during the argument on four sheets of paper. This could include important case quotes and citations; key factual points and their record locations; main themes you want to stress; arguments to fall back upon; and responses to your weakest points. Type everything onto those four sheets of paper, in whatever format you prefer. Take a manila folder and staple each page to one side of the folder. You’ve now got an easily transportable, accessible, four-page cheat sheet for use at the podium. Continually refine your cheat sheet until oral argument (assembling a new folder as needed). Along with your written introduction, this is the only material that you should take to the podium.
Prepare a written introduction. The introduction is the only portion of your argument over which you have complete control. Why squander that unique opportunity with an uninspiring, generic opening? Instead, use this occasion to your advantage. Write out an introduction that, from the very first sentence, captures the panel’s attention, frames the appeal and the issues, and presents a compelling narrative why your client should prevail—all in fewer than thirty seconds, because that’s all the time you might get before you’re interrupted. Writing an introduction will also force you to determine what, exactly, are the main themes and arguments that you want to convey to the court. Draft your introduction as you near the argument date, after you’ve done your weeks of advance preparation and after you’ve made your cheat sheet.
Hold a moot court. The single most important thing you can do to prepare for an appellate argument is to hold a moot court. Ask three colleagues to serve as judges. They should be litigators, but they need not have any expertise in your case’s subject matter—your panel won’t, after all. Provide the briefs and other relevant materials several weeks before the moot, which should be scheduled for several days before the actual argument. Treat the moot like a dress rehearsal: have your cheat sheet ready, deliver your introduction, and stay in character while your mooters pepper you with questions for an hour. Afterward, get the mooters’ views on what worked and what didn’t work. Have someone write down and send you the questions asked. Determine whether there are points you need to shore up, or arguments you need to rework, or facts you need to investigate. Revise your cheat sheet and introduction accordingly.
Visit the courtroom in advance. If possible, visit the courtroom in which you’ll be arguing—or, better yet, listen to an argument there, ideally before members of your panel. Get a feel for the space and sound of the room. Go up to the podium and get used to how close the judges will be; it’s closer than you expect. Listen to the judges’ style and tone; determine who jumps in quickly, and who lets you speak. Visualize how you’ll go from the gallery to counsel’s table to the podium. By familiarizing yourself in advance with the surroundings, you won’t be distracted on the day of your actual argument; you can stay completely focused on the task at hand.
Converse with the judges. Once oral argument is finally upon you, treat it as a conversation with the panel. Don’t just repeat your briefing; the judges are familiar with it. Instead, engage in a discussion with them as if you were trying to persuade one of your colleagues. Use your prepared introduction and glance downward at your cheat sheet as necessary, but for the most part, keep your head up and look the judges in the eyes, especially when answering questions. Be prepared for both a hot and cold bench. Moot courts replicate the former, but if you’re not ready for the latter, there will be some uncomfortable silent pauses during your presentation.
Be forceful but respectful. At the podium, have confidence in your arguments. You’re an advocate—now’s your time to advocate. Believe in your client and your position. If a judge asks you a question with a tone of incredulity, stand your ground. The principle you’re urging may, indeed, produce a consequence that concerns the judge, but you’re there to explain why that consequence is acceptable—particularly if the alternative is conceding your core argument. Don’t be afraid to tell a judge he or she is mistaken, but do so with respect: “I don’t think that’s true.” “I’m not sure that’s consistent with the record.” “Respectfully, that’s not what the cases say.” This is your one chance to correct any misunderstandings; take advantage of that opportunity.
Capitalize upon your adversary’s statements. After you’ve sat down, listen carefully to your adversary’s arguments. Scribble down any statements that stand out as incorrect, incomplete, or unsupported—as well as any significant omissions, dodges, or concessions. As the time for your rebuttal approaches, put a “1,” “2,” and “3” next to your notes, indicating which points you’d like to make during rebuttal. Then, at the podium, go through those three points. Don’t just identify a statement as incorrect or incomplete; build on your point by bringing it back around to your affirmative argument. This technique also works if you’re the appellee, although the points should be woven in at a later point during your argument. In either case, you’re presenting not just a response to your opponent but a helpful recapitulation of the reasons the court should rule in your favor—an ideal way to wrap up your first of many successful oral arguments.
George W. Hicks Jr. is a partner in the Washington, D.C., office of Kirkland & Ellis.
