How to deliver the greatest impact at oral argument at trial or on appeal.
“But your client breached the agreement!” – declared a Fifth Circuit Judge while pounding a fist with each word.
“Respectfully, your honor, there never was an agreement for my client to breach.”
It was one of those moments that gave me flashbacks to those heated law school moot court practices that were aimed at preparing me for this type of exchange. Nonetheless, it was still rather daunting in real life.
But I also knew at that moment, the theme and direction of my argument needed to shift. We were not there to debate whether my client had breached his non-compete agreement, however much I might disagree with the judge’s assessment of the facts. We were there to determine whether the plaintiff had proven that an agreement existed. So, instead of debating with the judge whether her factual deductions were correct, I shifted to attack how the record measured up with what the law says about Texas non-competes. I pointed to the evidence that reflected the lack of consideration rather than debate whether there was evidence to support a breach. Many months later, I was pleasantly surprised to receive an opinion in our favor by that same judge.
Many attorneys and judges alike will admit that oral argument often never tilts the leanings of an appellate court, or even a trial court. But on occasion (and likely more often in the trial court), it’s clear that oral argument alters a position. An advocate highlights a portion of the record or the law that the judges or justices had potentially not yet considered in earnest. So, how do you make sure that oral argument is as impactful as it can possibly be?
Here are some classic do’s and don’ts that we too often forget in the moment.
Don’t:
- Appear frustrated, exacerbated, flustered, or (we may have all seen an example of this last one) angry. Certain situations like the circumstances described above can present a challenge. Adopt the attitude that you will win the day–regardless of the case outcome–if you keep your cool.
- Allow your argument to be derailed down a road of irrelevant facts. Sometimes we adopt the mentality that we must correct the court if it appears to be misled or confused on the facts, whether those facts are relevant or not. While some of this correction is necessary, it should be framed with a redirection to the issues that matter on appeal.
- Be tone deaf concerning the messages that the justices are sending to each other. We tend to forget that many times the judges or justices are talking more to each other than the advocate. You should adopt a curious attitude about the positions of each judge and hopefully, come to a basic understanding with enough time left in your argument to speak to those concerns.
- Stick rigidly to an outline that you do not make fluid. Instead of your goal being to hit each and every point within your outline, try shifting your goal to ensure that you adapt your structure as you hear the court’s questions.
- Dodge questions or beat around the bush. Regardless of whether you perceive that an answer could hurt your argument, it is more effective to answer it directly, concede the point that you cannot avoid, and then, explain why you still win despite that answer. We have a tendency to explain an answer before revealing it. That is frustrating to the court and not helpful to the persuasiveness of your argument.
- Race through your argument or answers. While we have recited or thought through our arguments and position numerous times, the judges are digesting it as you go. Slow down. It is better to be slower than you are comfortable with than to speak too quickly.
Do:
- Listen intently to the questions without thinking about what your answer is going to be before you fully understand the question. Clarifying questions are certainly ok to ensure understanding. The judges would prefer to get the actual answer to the question rather than an answer based on a misunderstanding.
- Front-load your answer. For the same reasons discussed in the don’ts, force yourself to provide the yes or no answer first and then, the explanation. Even if it seems like a rhetorical question, provide the correct answer. Then, explain why you still win.
- Speak confidently. This can be a delicate balance, but confidence should never become arrogance or any disdain for opposing counsel or worse, the court!
- Make it conversational. Keep the commencement speeches and jury arguments out of it. Interjecting the justice’s or judge’s name is a good way to speak to, instead of at, the court. Ultimately, this is more about style than substance, and also requires a good balance to avoid an overly formal or overly casual demeanor.
- Know the record and the law. Have important record citations ready to go. There are not only judges in the room, but clerks as well.
- Finally, I’m a big proponent of practice. At the very least, have your colleagues ask you questions for a practice round. But if you really want to take your skills to the next level, record yourself. Video is best. The insight you will obtain from watching back your own argument—complete with all your little ticks and habits—can improve your skills more than hours of plain study.