The Art of Oral Argument: Everybody's a Critic

Occasionally, our firm is hired to help other lawyers prepare for oral argument. After reading the briefs, reviewing the record, and studying the applicable law, we will conduct a moot court session for the oral advocate. There, the lawyer can practice delivering their argument and fielding the types of questions that appellate judges ask. We then provide feedback and coaching based on our experience and what we have learned from appellate judges, other experienced appellate attorneys, and academics.

Our experience teaches us that this exercise is invaluable. And our clients agree. The lawyers we work with report that these preparation sessions not only help them more effectively deliver their arguments, but, frequently, help them think about the case in a different light. Because they have the time to reflect and hone answers to questions they may not have anticipated from the moot court panel, these lawyers have an edge when they ultimately appear in front of the actual appellate panel.

Oral advocacy is as much art as it is science. Thus, we also provide feedback and coaching about argument delivery and style.

One of our tips is to come to the courthouse with everything you might need during argument, including excerpts of record, briefs, appendices, and copies of the important rules and cases, but approach the lectern with nothing more than a very simple outline of the oral argument.

Actually, "outline" may be too strong a word to describe what we mean. You should have one or two pages of key points and references with only enough detail to remind you of what, ideally, you'd like to cover. The theory behind this approach is to two-fold: first, when you reduce the outline to one or two pages, you are forced to identify what is absolutely essential to your argument; and, second, if you have a mountain of paper to flip through while presenting your argument, it will interrupt the flow of argument and divert the court's attention away from what you are saying.

Our advice here is hardly unique. The technique is taught in appellate advocacy courses. Justice Antonin Scalia and Bryan Garner make the same recommendation in their excellent book, Making Your Case, published in 2008. We have confidently used this approach for most of our careers.

Imagine our surprise when we read that Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals expressed skepticism and perhaps a little scorn for the uncluttered lectern approach. This happened at a session of the ABA's Appellate Judges Education Institute Summit entitled “Non-Verbal Aspects of Oral Argument” where participants were shown clips of advocates presenting oral argument in appellate courts. In one of the clips, the advocate speaks in a non-conversational tone while gripping tightly the sides of the lectern, which is littered with piles of paper. Reacting to the tut-tutting of his fellow judicial moderators, Chief Judge Kozinski reportedly said that he found the “mess on the desk” to be a positive and suggested that, when an advocate is too smooth, it presents a barrier to communication.

Before taking Chief Judge Kozinski's comments too much to heart, it is wise to remember that he once famously advised a group of graduating law students--in great detail--exactly how to lose an appeal. He nominated himself, at least once, for the Article Three Judicial Hottie award on the Underneath Their Robes blog. And one of his opinions ends with this admonition: "The parties are advised to chill." Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002).

Even assuming that Chief Judge Kozinski was earnest in his praise of the "mess on the desk" and not just reacting against the perceived prissiness of his fellow moderators, it is very unlikely that your appellate panel will be populated with judges as "chill" as the Ninth Circuit's chief. And it is hard to imagine that even Chief Judge Kozinski would penalize a lawyer who displays command of the argument, the law, and the record while presenting from a lectern with a single page of notes. He may not be turned on by such a demonstration of competence. But it strains belief to think it would turn him off.    

In the end, we stand by our recommendation to eliminate anything that might distract the court from your argument. Do yourself and your client a favor, keep your "mess of a desk" back in the office.

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