Top 10 Things to Do Before and During an Appellate Argument
This article originally appeared in Goldberg Segalla’s On Appeal. Read the issue here.
As appellate lawyers, we spend most of our time at a desk, where we research, read cases, write briefs, and then write some more. Oral argument, however, is our opportunity for some excitement—to get out from behind our desks and demonstrate oral advocacy skills that match our writing talents. So, you want to make a good impression with your colleagues, clients, and—most importantly—judges?
CONSIDER THE FOLLOWING 10 THINGS TO DO DURING AN ORAL ARGUMENT:
1. Always BEGIN BY INTRODUCING YOURSELF and telling the court which party or parties you represent.
2. Just as you did in your brief, LEAD WITH YOUR STRONGEST POINT.
3. When a judge interrupts your presentation to ask a question, STOP SPEAKING—immediately. Do not try to continue, and never speak over them.
4. A corollary to number 3: ANSWER THE QUESTION YOU’RE ASKED. Don’t say “I’ll get to that later” or “I’d like to finish the point I was making.”
5. KNOW THE RECORD. There’s nothing more embarrassing than getting asked a question about what’s in the record and not knowing the answer.
6. KNOW ALL THE RELEVANT CASES. Be able to answer questions about them, especially the ones contrary to your position. Sometimes a judge who is friendly to your position will throw you a softball question. But, more often, you’re going to be challenged: Why should I adopt your position when this case I’m asking you about is contrary to your argument?
7. A corollary to number 5: If possible, UPDATE YOUR RESEARCH the day of or a couple of days before your argument. You don’t want to miss a decision—good or bad that may impact your case.
8. Have the first few sentences of your argument planned, but DON’T READ YOUR ARGUMENT. Oral argument is not an opportunity to read a prepared speech; it’s an opportunity to have a conversation with a panel of judges and advocate your position.
9. In advance of your argument, if you can, OBSERVE OTHER ARGUMENTS IN THE SAME COURT. Some courts even stream oral arguments live. If you can’t make it to the actual courthouse, viewing them is a good substitute.
10. If permitted in the court where you’re arguing and you’re the appellant, remember to RESERVE REBUTTAL TIME. If it’s clear from your opponent’s argument that the court is on your side, you can always waive your rebuttal.