Oral Argument: Present to Help the Court

by Nicholas Bruno, Beck Redden LLP.

There are scores of articles from many far more experienced than this writer—including from U.S. Supreme Court Justices—providing advice on how to present an oral argument. See, e.g., John Roberts, Chief Justice Roberts on Oral Argument, available at https://www.youtube.com/watch?v=UJQ7Ds4nAmA. Adding another article to that excellent advice is a needless task and one that this paper does not intend to undertake.

 Instead, this paper focuses on this author’s approach to preparing for oral argument as a young advocate and how clerking for an appellate court shaped that experience.

 The goal of oral argument, like the goal of any advocacy in a court, should be to aid the court in reaching its decision. By focusing on making the court’s job easier, an advocate maximizes his client’s chances of success.

 That goal is cliché and nearly universally acknowledged. But that goals begs the question of how to do that in the context of an appellate oral argument.

 To answer that question, an advocate must first understand how oral argument fits into the court’s decision-making process. Clerking at an appellate court gives you firsthand experience with this aspect of oral argument.

 Oral argument occurs after most of the work for a case has been completed. The arguments have been made by the parties in their briefs. The justices have read the briefs and the controlling authorities. A staff attorney has thoroughly read that same material and drafted—depending on the court—either a memo on the case or a draft opinion. The justices on the panel have held “conference,” that is, a meeting of the panel to discuss their thoughts on a case.

 Because most of the work has been completed, often, at this point, the justices have a fairly decent idea of their opinion and misgiving on the arguments.

 But that does not mean that the work for oral argument is done. The court is still preparing for oral argument. As a clerk, in drafting the memo on the case, you have likely spent more time on the case than the judge. Accordingly, your role is to ensure that the judge has the relevant information about the case so that the judge can test the limits and strengths and weaknesses of a particular position. The law clerk must ensure that the judge is up to speed on the case to ask questions that will aid in drafting the final opinion. That requires the court to consider the impact that the opinion will have, not only on the current case, but also on cases going forward.

 That process should influence an advocate’s preparation for oral argument. As a starting point, the advocate should not be less prepared than the justice. That means that the advocate should know the arguments in the briefing inside and out. The advocate should know the record. And the advocate should know the controlling authority.

 From a practical perspective, to accomplish that goal, the advocate should carefully read through the briefing. He should know the responses to each of the argument raised in his opponent’s briefing. He should read the cases cited both in his briefing and the opponent’s briefing.

 But it is worth emphasizing that this is merely a starting point. At this point, the advocate is only as prepared as the court. If the advocate is to help the court, he must be prepared to answer the court’s questions.

 After getting up to speed on the briefing and case law, the advocate should think through the case critically. An advocate should identify the weaknesses of his position. He should ask himself where he is asking the court to go beyond current precedent. He should be able to convince the court why doing so is the better option for the jurisprudence. He should identify the adverse case law and ask himself what his opponent would say about the case. He should identify the opponent’s strengths and have answers to those positions.

 These steps need not—in fact most often should not—be conducted alone. It is often helpful to enlist the help of another attorney. Most helpful is another attorney who has not worked on the case. Ask that attorney, either in a formal moot court setting or even informally, to give you his thoughts on the strengths and weaknesses of the arguments in the briefing.

 After identifying the weaknesses in his position, the advocate should know his position’s limits. It is important to know where the line must be drawn for his client to win so that he can, if necessary, tactically give up ground.

 By this point, an advocate should know the likely questions that he will be asked at oral argument. The advocate should be prepared to respond to these questions. Many advocates have different methods to prepare their answers. Some use flash cards. Others outline the answer by issue. There is no right or wrong way. But it is important to prepare answers that will persuade the court.

 Persuading an appellate court means helping the court in drafting its final decision. It is not like persuasion in other contexts, that often include emotional or rhetorical appeals. Being helpful to the court requires that an advocate be upfront with the court with both the strengths and weaknesses of his position.

 Finally, the advocate is ready for oral argument. Presenting the argument should be the easy part for a prepared advocate. Again, several lawyers have provided tips on speaking presentation, court etiquette, and so forth. That advice is important to heed.

 But, when in doubt, an advocate should remember what argument is about: not scoring rhetorical points (not important to the court) or making arguments (which should have occurred in the briefs), but helping the court and answering its questions.