Oral Argument and Advocacy |
you tried to answer as best as you could rather than making something up or blurting out the first thing that came to mind .
Know When to Correct Opposing Counsel
The rule of thumb here is similar to that for when to give a rebuttal . You should clearly respond to the other side ’ s statements during oral argument if you believe that they have misstated facts or law material to the case . When you draw the court ’ s attention to the misstatement , you should also explain to the court why the misstatement is material to the issue being decided . 12
Practical Tips
Don ’ t Read From or Get Buried in Your Outline
You should come to court knowing your argument well enough that you do not need to constantly refer back to your outline . Prepare as much as possible before your oral argument so you can avoid making this common mistake .
Be Respectful
Be formal in court : do not speak when the judge is talking , and stop talking when the court begins to speak . Your argument should not be a speech or long , uninterrupted diatribe . It should allow for interruption , questioning , and flexibility . Additionally , avoid making flippant remarks . Unless encouraged by the court , jokes are never a good idea during oral argument because they will likely fail and are never necessary . 13 This should go without saying ; however many attorneys still miss the rule : do not make personal attacks . If your opponent engages in personal attacks , you should take the high road and not dignify their attack with a response . Judges do not take well to personal attacks , and , in essence , you should simply let opposing
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counsel “ dig his / her own grave ” without personally stepping in should they decide to engage in personal attacks against you or your client .
Concede vs . Don ’ t Concede
Many attorneys think they should never concede . That isn ’ t true — instead , you should concede when necessary . 14 However , do not concede where you do not need to , because you risk losing credibility ( which you , of course , always want to maintain with the court ). As a general rule , most effective advocates are willing to concede anything they need to concede that will not result in losing their case . Conceding a point that you can concede and still win does not show weakness , it shows that you are a reasonable attorney .
Be Yourself
Credibility matters , so you shouldn ’ t try to act like someone you ’ re not . For example , if you ’ re usually a shy , quiet person , don ’ t try to be loud and brash in court . Courts respect authenticity .
Ditch the Drama
Televisionesque fist-pounding , flamboyance , and theatrics really should not be used in oral advocacy . It probably will not work in your favor , and is simply too risky to be worth trying out in court . Leave the acting on screen where it belongs .
Be Clear About What You Want
Be clear in telling the court what relief you are seeking on behalf of your client . 15 Unless you explicitly state it , you probably won ’ t get it . Courts will commonly ask what rule you think applies , or what outcome you want . Many advocates are prepared to answer this question ; they know they want to win , but they haven ’ t thought through exactly what relief would look like . Be ready to directly answer that question in the context of telling the court the result you seek .
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Remember Your Purpose
Your purpose at oral argument is to inform the court . Do not lose sight of that . The best oral argument should feel like a collegial discussion of ideas .
Most attorneys get nervous when it comes to oral argument . That ’ s normal . A practitioner ’ s guide to oral argument will not eliminate nerves . But , through diligent preparation , responsiveness and authenticity , you can make what feels like a nervewracking experience an effective and perhaps even enjoyable aspect of being an attorney . ____________________ Jared K . Carter , Esq ., is an Assistant Professor of Law at Vermont Law School and a practicing attorney . He focuses his practice on constitutional law and consumer rights . Lauren Bishop is a December 2015 graduate of the University of Wisconsin Law School , where she published a student piece and served as Senior Managing Editor with the Wisconsin Journal of Law , Gender & Society . She focused her legal studies on labor and employment law and the housing needs of local community members . Lauren is happy to call Vermont home and looks forward to practicing in the state . ____________________
1
Vermont Supreme Court Oral Arguments ,
State of Vermont Judiciary , https :// www . vermontjudiciary . org / LC / audioarguments . aspx ( last visited April 6 , 2016 ).
2
Id .
3
Id .
4
James D . Dimitri , Stepping Up to the Podium with Confidence : A Primer for Law Students on Preparing and Delivering an Appellate Oral Argument , 38 Stetson L . Rev . 75 , 77 ( 2008 ).
5
Kimberly Atkins , Top Supreme Court Litigators Give Tips on Arguing Appeals , LegalNews ( Aug . 9 , 2011 ), http :// www . legalnews . com / detroit / 1028908 .
6
Robert J . Stumpf , Jr ., Karin Vogel & Guylyn Cummins , Your Skills : Top 10 Tips to Prepare for Oral Argument , Recorder , Aug . 2 , 2013 , available at http :// www . sheppardmullin . com / media / article / 1208 _ The % 20Recorder % 20- % 20 Your % 20Skills % 20- % 20Top % 2010 % 20Tips % 20 to % 20Prepare % 20for % 20Oral % 20Argument . pdf
7
See Dimitri , supra note 6 , at 87-88 .
8
See id . at 77 .
9
See Sylvia Walbolt , Twenty Tips From a Battered and Bruised Oral-Advocate Veteran , Litigation , Winter 2011 , at 1 .
10
See Dimitri , supra note 6 , at 84 .
11
See Walbolt , supra note 11 , at 3 .
12
Id .
13
See Atkins , supra note 7 .
14
See Walbolt , supra note 11 , at 2 .
15
See Dimitri , supra note 6 , at 90 .
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