Authored by: Shmuel Wyckoff
Lawyer: “As we know, in Illinois, we require three particles. . . That’s the State Police threshold. I would add this morning besides looking at the common law record, I did a Chat GPT, and I think it’s called a Grok search, to see if there was any states [that allow for one particle as the threshold.] According to AI, there are no states.”
Supreme Court Justice: “So is that part of the record? What AI says about it?”
Lawyer: “Well . . . no.”
Supreme Court Justice: “Should we be considering that? Should you be arguing that?”
This conversation was a real exchange between a lawyer and a Justice on a state’s highest court. That lawyer’s argument unsurprisingly did not end well- it concluded with the justice’s asking the lawyer why their brief contained cases that did not support the propositions for which they cited them and the lawyer profusely apologizing. Not exactly an example in “zealous advocacy.”
This incident prompted me to think about oral arguments in general, as well as what goes into a successful presentation before an appellate panel. So, in a quest for more information during the time between the end of my finals and the start of my summer internship, I observed dozens of oral arguments in the Illinois Supreme Court and Appellate Courts. I also reached out to multiple superbly qualified appellate litigators and judges and asked about their views on oral argument. Here are my takeaways.
I. Quantifying oral argument success.
At the outset, it is important to define success at oral argument. This is an inherently difficult thing to do because there are neither points nor declared winners at oral argument, and the judges do not rule from the bench. But David Fine, the chair of the appellate practice at K&L Gates, offers a helpful guideline. He points out that the goal of oral argument is to be a helper to the court. And in that sense, a successful oral argument is one in which an advocate can give helpful answers to the judges in real time, satisfy the judges’ concerns, and make crucial points.
Zachary Pohlman, the Deputy Solicitor General for the State of Nebraska, agrees and elaborates that a “successful oral argument is one where the advocate answers the panel’s questions directly and in a way that helps the court understand the case from advocate’s perspective. Formulating thoughtful answers to the court’s toughest and most likely questions ahead of time is the key to presenting a persuasive argument.”
I appreciated these perspectives because they give advocates a way to gauge their performances in front of an appellate panel independent of the ultimate outcome of the case. Advocates will inevitably confront cases where the law and facts are simply not on their side; judging an oral argument by the ultimate outcome can seem frustrating if the chances of success were low to begin with. By considering how one has presented their case, handled the court’s toughest questions, and helped the court make their decision, advocates can find success at oral argument regardless if the court sided with them or not.
II. Preparing for argument.
An anomalous aspect of appellate practice is the sheer amount of time necessary to prepare for an oral argument compared with the actual duration of an oral argument. When I asked David Fine about this aspect, he responded that it is true that the amount of prep time can seem disproportionate, but that when advocates prepare for oral argument, they are preparing for ten minutes; they just don’t know which ten minutes it will be. This means that the vast nature of the law can lead the argument in any direction, so an advocate needs to be prepared for anything.
Sara Pfrommer, an appellate litigator based in Utah, and Joel Pratt, an appellate advocate based in Colorado, both provided me with fantastic advice on preparing for oral argument. First and foremost, Ms. Pfrommer emphasizes how important it is to “know your record cold. The judges here in Utah are always extremely well versed in the facts, and there is nothing that looks worse than if the judge knows what happened better than you do. It goes without saying that you need to know your own brief, but you also need to know your opponent’s brief maybe even better. It’s not by accident that arguing ‘off brief’ is an important part of any moot court competition.”
Beyond having the record and briefing at your fingertips, Joel Pratt explained to me that preparing for oral argument “does not mean writing a speech or outline that you’re going to stick to. It means knowing the law, the record, and the arguments such that you can use that knowledge in response to questions. Chief Justice John Roberts, when he was an appellate litigator, famously used to take all of his arguments, put them on cards, shuffle them, and then practice his argument in that order so that he could transition through any of the topics he wanted to cover. Preparation allows you to be nimble. That also means you should not be reading your briefs to the court but should, instead, be distilling the key points and themes. You can only do that if you spend the time preparing.”
Another fascinating piece of advice that I received from David Fine, Sara Pfrommer, and Joel Pratt individually was to prepare for what you can concede. Although making a concession at oral argument may seem counterintuitive, doing so can benefit an advocate in a few ways. First, an advocate who concedes a weak part of their case “will buy a ton of credibility with the court” and can win close cases, says Joel Pratt. Sara Pfrommer adds that a concession can be important because there is no reason to “spend valuable time with the panel arguing about something that isn’t really central to the outcome.” Of course, both attorneys make it clear that appellate advocates should only concede points that still allow them to win.
In the same way that appellate advocates need to be prepared to concede points that are not central to their cases, it is also crucial that they understand the key contested points. As Judge Allegra Collins of the North Carolina Court of Appeals explains, advocates should “think through why this case has been called for oral argument and address those issues first and head on. We don’t need detailed background or argument on points that are settled – get straight to the heart of the contested matter.”
Another key part of oral argument preparation is that an advocate should be ready to answer the question that is relevant to every appeal and is included in every appellate brief: Does the court have jurisdiction? While jurisdiction is usually not a contested issue, it is critically important when it does come up. For example, in People v. Dyas, 2025 IL 130082, the Illinois Supreme Court recently affirmed the Circuit Court’s judgment on the grounds that the Appellate Court lacked jurisdiction to consider the defendant’s challenge. And the issue of the court’s jurisdiction can be raised by the judges at oral argument even when it is not apparent from the briefing that the issue will be discussed.
In one oral argument that I observed, a judge asked a lawyer something along the lines of “given your argument you are making here, do we even have jurisdiction to decide that question?” Luckily, that lawyer was prepared and answered the question with ease. In contrast, it would have been fatal to the lawyer’s credibility had they not had a response at the ready. All appellate advocates should consider the court’s jurisdiction and be prepared to explain why the court does (or does not) have jurisdiction to hear the question presented.
III. The argument itself.
The big day has arrived. You are going to get up in front of a group of experienced judges and try to persuade them to rule in your favor. That is a daunting task, but there are a series of steps that you can take to ensure success.
A successful oral argument starts with a roadmap, simply a few short paragraphs that includes the standard of review and how that affects the analysis, the specific relief requested, and a high-level overview containing the main reasons why you win.
A solid roadmap is important because it lets the judges know what you will be discussing and in what order. That way, you won’t be interrupted and lose your train of thought with a question about a topic that you plan on talking about later in the argument or a clarifying question that is central to your case. For example, an advocate who launches right into their argument may be interrupted with a question like “Counsel, what exactly are you asking us to do here?” or “Counsel, doesn’t such and such doctrine (that you planned to discuss later) bar your claim?”
A roadmap also organizes your entire argument. In all the oral arguments that I observed, the difference between the advocates who were very organized and those who were not was abundantly clear: The organized advocates captivated the court’s attention and were asked questions that directly related to what they were discussing. The unorganized advocates were forced to jump from topic to topic because the judges kept asking questions clearly reflecting their difficulty in keeping track of where the argument was going.
When the judges do ask questions, it is of utmost importance that an advocate listen. This seems obvious, of course. But “it’s easy to get so hung up on what you think you need to say that you aren’t able to listen to the questions you get,” explains Dallas Young, the Chief Appellate Counsel at the Utah County Public Defender Association. “Questions will tell you where you’re weak, and you need to be ready to shift off what you think you need to talk about to what they want to talk about.”
Mr. Young shared an anecdote with me about a lawyer who kept telling a judge to let him finish his presentation before getting to the judge’s pressing question. The lawyer never did answer the question. Unfortunately, says Mr. Young, “that was a huge missed opportunity on that attorney’s part and reflected a fundamental misunderstanding of what he was supposed to be doing at oral argument.”
Rather, the correct approach to oral argument is to have a helpful conversation with the judges that “makes them see the case the same way you do,” opines Chris Schandevel, a legal writing expert and appellate attorney at the Alliance Defending Freedom. This conversational tone is something that I noticed in more than a few oral arguments that I observed. I saw various argument styles from different attorneys, but the ones who truly connected with the judges were the ones who approached the podium with a smile, warmly greeted the judges and opposing counsel, and maintained a conversational flair throughout their presentation. Appellate advocates can be sure this is the correct approach, as Judge Collins, who sees arguments from behind the bench, confirmed that “it is very helpful when the advocate truly has a conversation with the Court. Oral argument is an opportunity for judges to ask questions and to gain clarity on certain issues. An advocate who will join in the conversation and help the judges find the answers they are seeking is very valuable to the Court.”
Surely this is not to say that an appellate advocate should be too casual or lackadaisical at the podium. Respect for the court is non-negotiable. And many appellate advocates will tell you that absolute deference to the court is required. But Mr. Schandevel, who has handled hundreds of appeals and has delivered countless victories in multiple courts, takes a more innovative approach. He believes that complete deference can occasionally get in the way of achieving your ultimate goal- the best result for your client.
Therefore, Mr. Schandevel advocates for an approach that allows an appellate attorney “to maintain some level of control.” Six ways to keep that control are “(1) leading with a roadmap; (2) calling on judges to ask questions; (3) allowing [your] voice to trail off when interrupted; (4) using one judge to pivot away from another judge; (5) answering a question without asking permission; (6) getting out [your] closing line even when [you are] over time.”
Of these pointers, my favorites are calling on judges to ask questions and using one judge to pivot away from another. Mr. Schandevel explains there will be times at oral argument when a judge signals that they are about to ask a question but allows the advocate to finish their point. In that situation, the best practice is to finish the point, turn to the judge, “and say, “Yes, Your Honor,” to invite her to ask the question she looked like she was about to ask a few moments ago.” Acknowledging the judge’s question not only shows respect for the judge, but also subtly “sends the signal that you’re still in control of the argument, which helps the judges see you as an authority. So, it’s a win-win all around.”
Conversely, sometimes a judge will not relent even after an advocate has given their best response to a question. When that happens, Mr. Schandevel advises advocates to “pivot back to another judge’s question while invoking that judge’s name. A judge is much more likely to let you go if you make clear you are answering another judge’s question.”
IV. Final thoughts.
Oral argument can be intimidating. Going into my 1L moot court competition, I was terrified. But as I learned more about oral argument through observing and connecting with wonderful appellate attorneys, oral argument became progressively less scary. I then had the opportunity to present oral argument in Illinois’ Fifth District Appellate Court as part of an internship, and through deliberate preparation and the right mindset, I was able to present my case with confidence. I hope the pointers in this article can ease the oral argument experience for other advocates.
About the Author:
Shmuel Wyckoff is a dedicated law student at Chicago-Kent College of Law with a passion for exploring issues in criminal law, constitutional law, and municipal law. Shmuel’s goal is to provide readers with engaging discussions of current issues in the law while also empowering readers with practical legal information. While not immersed in classes and externship work, Shmuel enjoys watching football and baseball, cooking, reading, and hiking.