by Jared K . Carter , Esq . and Lauren Bishop
Oral Argument and Advocacy : Practice Ready Tips
Oral arguments happen every day in Vermont courts . Yet , because many of us have busy schedules , families , and client commitments , we rarely have time to contemplate general strategies and approaches to good oral advocacy . But if we embrace the opportunity that oral advocacy provides us to engage with the court , the experience can be both enjoyable and productive . When we do have to go before a court to argue our case we can best serve our client ’ s interests if we consider how best to engage in effective oral advocacy . The practical tips this article presents are not meant to be all encompassing or to be adopted in their entirety . Rather , the purpose is to provide practitioners with a few techniques and strategies that will make their time before a court more effective .
The Vermont Supreme Court typically grants oral argument where a party requests it ; however , it sometimes directs that cases be decided on the briefs alone . 1 Where the Court has determined that a case will be heard by a three-justice panel , oral arguments are limited to five minutes per side . 2 When the full Court hears the case , each side typically is allotted fifteen minutes for oral argument . 3 Regardless of forum , time is of the essence and preparation is therefore key to any oral argument .
Oral arguments are meant to supplement the briefs ; thus , judges typically read the parties ’ briefs prior to oral argument , and use those briefs to frame questions to ask counsel at oral argument . In cases on appeal , oral argument should be limited to the issues on appeal rather than comprising a recitation of the facts of the entire case . The court will be familiar with the factual background of the case already . Also , because judges usually ask several questions during oral argument , you should construct your argument to allow for interruption . An oral argument should feel like a collegial dialogue between the court and counsel , not a speech or monologue from the advocate to the bench . 4 Your job is to educate , advise , and most of all persuade the court 5 — not to talk at it .
Prepare , Prepare , Prepare
In order to not be caught off-guard by the court ’ s questioning , you should practice your oral argument a handful of times before giving it in court . Practice cuts down on the risk of getting flustered and thrownoff during your argument , which can cause your argument to spiral out of control and may result in your client not being granted the relief that they deserve .
Show up to oral argument knowing the record and relevant law like the back of your hand . This means knowing the law on your side and also the law on your opponent ’ s side . Go through and read all of the briefs ( and the trial court ’ s ruling ) in the case while you prepare for your oral argument , 6 because you will likely need to refresh your memory if a substantial amount of time has passed since you last worked on this case . You will have to be able to anticipate the strong and weak points in both your case and opposing counsel ’ s , which will in turn help you anticipate the court ’ s line of questioning .
Prepping for Questions
Part of preparing for oral argument is thinking about the questions the court will have for you during argument . This will likely be pretty easy , as both you and the court will already know what the weak points of your case are before oral arguments even begin . Another good way to prepare for questioning is by talking with a friend or colleague . 7 Discussion will help unearth weak points in your case that you would have missed on your own . Ultimately , questions should be viewed as an opportunity to engage the court in a conversation about the case . The court ’ s questions may prove difficult , but if you embrace the mindset of engaging the court in a dialog about your case before you walk into the courtroom , you can alleviate some of the usual nervousness that practitioners feel prior to argument .
Outline
One of the best ways to make sure you use every minute of your time effectively is to have a good outline prepared for your oral argument . It should begin with an introduction addressing the court and telling the court what the case is about ( your theme ), stating your conclusion ( what judgment you seek ), and then briefly the reasons for that conclusion . Stating the reasons for your conclusion is best done in numbered bullets , for example that x judgment should be [ whatever relief you seek ] for one to three reasons — after which you would succinctly state those reasons .
This approach gives the court a road- map of your argument , which is helpful in the event that you do not have time to get to all of the points in your outline that you were prepared to make ( due to interruption , poor timing , etc .). This approach also gives you a chance to calm down a bit and set forth a roadmap for yourself , which should make it harder for you to get “ lost ” during your argument .
Your outline should also include the major cases and other legal authority you rely on in your argument . 8 While you should already have the relevant law memorized , it is helpful to jot down some quick reminders about a case in your outline so you know when to discuss it during your argument , and how you can weave it into your answers to the court . This should also help cut down on any courtroom jitters you may have . Moreover , you may want to write down questions you anticipate the court will ask of you .
Because time tends to run short at oral argument , put your best foot forward by making your strongest arguments first , and leave the weak ones out . Since you will not have time to make all of your arguments , you should only make your most pertinent and ironclad points to the court .
Lawyers sometimes linger on the introduction of their argument , getting stuck on reciting the facts of the case . Avoid that mistake — get to the point as quickly as you can . 9 The idea is to get to the issues presented right away . If the court has already read the facts in your brief , then you should not waste your precious limited time briefing the facts during your oral argument .
Arguing a case on appeal means you need to know and understand the standard of review . This should generally be part of your outline . The standard of review is very important to any appellate court . It determines how much deference the appeals court should give to the trial court . Typically , if you are the appellant you ’ ll want a less deferential standard of review because you are arguing for the trial court ’ s decision to be overturned . Appellees , on the other hand , want to have the lower court ’ s ruling upheld and so will usually want the appeals court to apply a more deferential standard of review . Either way , you should be prepared to explain the proper standard of review to the court and cite authority if the standard of review is controversial . 10
Finally , your outline for argument should be exactly that — an outline . Most experienced oral advocates bring only a manila
30 THE VERMONT BAR JOURNAL • SPRING 2016 www . vtbar . org