I’ve discussed how to prepare for oral argument. Now for the real thing.
Your opening lines.
Greet the judges and tell them who you are and whom you represent. "Good morning, your honors. Moe Howard for the appellant, Larry Fine." The old bromide "May it please the Court" is too formal for me, but many lawyers feel more comfortable with it.
Ask to reserve rebuttal time. "I would like to reserve five minutes for rebuttal." If you fail to ask for this, it might not be offered to you. The importance of rebuttal is discussed below.
In one sentence, remind the Court what the case is about, so they can reorient their thinking from the case they just heard. “As you’ll recall, this case involves a punitive damage award of $100 million.”
- Next, give a very brief outline of what you intend to cover. "My brief discusses five reasons for reversal. I plan to argue only two of them, and submit the others on the brief—unless the court has any questions about them. The two I will argue are as follows. . . . " Now pause, to give the judges a chance to break in with “I do have some questions about your second point, counsel,” or some other indication of their concerns.
Your State of Mind
This is your chance to engage the judges. The worst thing you can do is read a speech to them. The next worst is to memorize a speech to tell them. The best approach is to talk with them—face-to-face and heart-to-heart—about why a gut sense of justice (your theme) requires a ruling for your client.
Initiate a conversation. Instead of acting like an accomplished orator, using histrionic gestures, florid phrases, and the like, use normal language in a normal tone of voice. This relaxed attitude will make it easier for reticent judges to participate in a discussion with you.
Stay In The Moment.
This is the Golden Rule of Oral Argument.
In war, generals plan to the hilt. But once the battle begins, everything changes, and the best leader adjusts to "the fog of war". Same thing in sports competitions. Coaches develop elaborate plans, then find they need to change everything on the spot once the game begins.
Oral argument is the same. You plan, you anticipate as best as you can, but once it actually starts, anything can happen. You must be mentally ready to scrap your plan and go with what's happening in front of you. Your job is to persuade the Justices, not to go through with your planned presentation come hell or high water.
Your pre-planned Outline is a guide for you to fall back on if no questions from the judges are forthcoming, or if their questioning becomes momentarily exhausted. Generally, that is the only purpose of your Outline. It is not something that you must get through at the cost of answering the judges' questions.
The important points in your Outline—especially your theme of injustice—should be worked into your answers to judges' questions, wherever appropriate.
Your frame of mind should be very flexible. You should be willing to depart from your Outline at any time—even in the middle of a point you are making—to answer a judge’s question. It does not matter that the question is dealt with somewhere else on your Outline. Answer it as soon as it is asked.
The judges might well ask you about something you did not plan on, or come at the case from an angle you hadn't seen. When this happens, do not brush it aside. The judge is telling you that she is about to rule against you—unless you have a good answer to her question. So think of the best answer you can that helps you win and give it to her. Pause for a few seconds if you need to. Making them wait a bit is better than giving a weak answer.
This is your one brief chance to learn why you might lose the case—and try to save it. You learn this through the judges' questions, not by trying to get through your own agenda at all costs.
So never answer a question with "I'll get to that point in just a minute, your Honor." That tells the judge that you care more about your speech than her concerns. Her question lets you know what she thinks is the heart of the case, so why not go straight to that heart, instead of wasting some of your precious time on something else?
Likewise, never say "I already answered that" or "As I said before." If the judge had understood what you said before and found it persuasive, she wouldn't be asking the question now. She is indicating what bothers her about the case, so take advantage of this opportunity to address her concern.
Listen very carefully.
When a judge asks you a question, listen very carefully to her whole question before you decide how to answer it. During your preparation for oral argument, you guessed what questions are likely to be asked. The first few words of the judge's question might lead you to think that she is asking a question you expected, when in fact she means to ask something slightly (or very) different. If you spend time answering questions that were not asked and fail to answer questions that were asked, you waste your time, annoy the judges, and fail to deal with their concerns about the case.
Questions are windows into the judge's mind, but sometimes the windows are a bit smudged. Sometimes a judge's question is awkwardly phrased or simply unclear. If you don't understand a question, politely ask her to restate it—perhaps by blaming yourself for your "inability to understand the question". This is better than spending time answering a question that was not asked.
Be alert for the question behind the question. Sometimes a question is clearly worded, but it is not the real question on the judge's mind. If you are arguing that there was no probable cause to arrest Appellant, a judge might ask, "But how much is needed in order to constitute probable cause?" This sounds like it calls for an answer generally stating the law, but it also indicates that the judge is not convinced that there was inadequate cause here. If so, your general statement of the law, in response to her purported question, is not likely to change her mind. Go further and explain why the facts known to the police officer in your case were not sufficient to constitute probable cause to arrest.
Keep Case Discussion to a Minimum.
If you are arguing to an intermediate appellate court, sometimes the key issue is the meaning of a higher court opinion that binds this court. Then, of course, you are likely to get questions about that case.
But usually it's a waste of time for you to volunteer discussion of cases. It's too late. These cases were in your brief, and you must now assume that they didn't work. Discussing them now will not get a judge who has tentatively decided against you to change her mind. You have a better chance of turning around a court that's leaning against you if you focus on your justice theme.
A member of my appellate team, James Ardaiz (former Presiding Justice of California’s 5th District Court of Appeal, in Fresno), says: “My experience is that frequently lawyers don't have a clearly thought out objective when they argue. Many forget that miscarriage of justice is an overarching consideration for judges.”
If relevant new cases have been decided after your brief was filed, do not waste oral argument time so informing the court—unless one of the cases is very relevant. Simply send the court a letter regarding these cases, before oral argument if possible.
by M.A.T. Legal Director Myron Moskovitz