Last fall, I had the pleasure of attending the Charles W. Froessel Intramural Moot Court Competition at New York Law School. I was there as an ambassador of goodwill of sorts – we printed the program for the final round as a courtesy to the Moot Court board and I was disseminating appellate rule books to attorneys and faculty serving as judges for the competition. One of the scheduled judges cancelled and the chairperson of the competition found herself in need of another judge. As luck would have it, I was a very active member of my law school’s Moot Court and have significant experience in appellate oral advocacy. So, I volunteered to help.
It was refreshing to see the energy and exuberance from budding appellate advocates. The competition was strong, the subject matter was interesting; and I must confess, it was quite enjoyable putting the competitors to the task. I want to share some of the more general observations and critiques from the panel of judges. Think of them as a dirty dozen useful tips whether you’re a novice or seasoned veteran in oral advocacy.
1) Ladies and gentlemen, button your jackets. Whenever you stand up, you should close your suit jacket; it demonstrates a more polished look and shows you are ready. Feel free to unbutton it when you sit back down.
2) Be sure they’re ready. When you approach the lectern, get yourself situated. When you are ready, look at your panel. Wait until all the judges are looking at you before you start speaking. They may be in the middle of reading something or writing notes related to your case (or even a previous one), so pause until they are all paying attention to you. The clock (your time limit) won’t start until you start speaking.
3) Introductions are in order. Always introduce yourself (and your colleague, if you are joined on an argument) to the panel. If you are only addressing part of the argument, state what topics you and your colleague will be addressing. Present a “road map.”
4) No shuffling. Do not bring index cards, loose pieces of paper or even a stapled stack to the podium with you. By all means, outline your argument, but write it on a single manila-style folder. Use all four sides if you need to, no one will know. But, I promise you people will notice if you are flipping pages or shuffling cards. And, heaven help you if you drop the cards or papers all over the floor.
5) Your body speaks volumes. Body language comprises a large percentage of your communication to the court (along with the words you use and your tone of voice). Stand confident and firm. Don’t fidget or overuse hand gestures. Maintain eye contact with the panel when you are speaking or being spoken to. Yes, you will be nervous, but through practice and repetition before going to court, you should get your nerves under control. When all else fails, hold onto the lectern – they probably won’t be able to see your knuckles turn white from their vantage point.
6) Key points first. Present what you believe to be your strongest argument(s) up-front, even if it was written in a different order in your brief. You may not have a chance to get through all of the points you prepared in your outline, so make sure you get the strongest ones heard as soon as possible.
7) Respect the bench. Always show deference to the judges. When they speak, you listen! Never interrupt! If they ask a question, it means it is important to them, so be sure to answer it right away, even if it is out of sequence in your argument. You don’t know how long you will be up there presenting your case, so, if a judge has a question, it might be what his/her decision rests on and you don’t want it to go unanswered. Also, remember to look directly at the judge whom you are answering.
8) Follow their lead. Good advocacy means listening to the judges’ questions and following the direction they want you to go. If you have already heard your adversary’s argument, you should be able to gage what the judges feel are the weak points – attack them! You should also be able to garner what the judges see as your strong points – amplify them.
9) Hit the softball. Occasionally a judge will ask you a question with which you wholeheartedly agree. Yet, because you are pre-conditioned to stand up there and argue, you vociferously disagree. Instead, if the judge lobs one up there for you, confidently say “EXACTLY Your Honor.” It shows that you are listening and know your argument.
10) Don’t be afraid to concede. There are likely to be issues in your appeal that you know you just can’t win; either the law or facts are stacked too high against you. When the judge(s) pepper you with questions on such issues, instead of proverbially digging your heels into the sand and fighting, politely concede the point and then re-direct the argument to an issue that is stronger for you. It will save you time from fighting a no-win situation and demonstrate the integrity of your own argument.
11) Your opinion doesn’t matter. Unless you are asked for it, don’t offer your opinion. Saying things like “I believe” or “I think” are poor prefaces for your arguments. It is fine to say “Appellant argues,” “Respondent contends” or other similar phrases. It is even better to personalize your client – such as “Mr. Smith asserts,” “ABC Corp. argues” or “Mrs. Jones maintains.” You are there as a representative of your clients, so speak for them, not yourself.
12) Know the relief you need. Clearly, if you are the appellant, you want the underlying order reversed – the court knows that. Too often, however, advocates forget to ask for what they really want. For example: Is it a new trial? A specific interpretation of a statute? Or maybe, implementation of a public policy? Whatever it may be, ask for it specifically and not just for reversal or affirmance. And, by all means, be sure you know what it is that you want, so if the panel asks you – “What would you have us do counselor?” – you are prepared with an answer and don’t just look at them dumbfounded.
So, there you have some pointers on being a good oral advocate. These tips work just as well in lower courts as they do at the appellate level. If you are implementing all twelve already, bravo! But, from my years of presenting and witnessing oral arguments, I’d say that less than half of these guidelines are followed with any regularity.
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Tagged: Oral Argument, Appellate Practice, CP Legal Research Group, Appellate Procedure