Phi Delta Phi
Foster Inn
Oral Argument Tips
10. Know Your Audience – Who are you trying to persuade? In 1L oral arguments and Moot Court, it will be a
judge or a panel of judges. If the law is in your favor, argue the law. If the law is not in your favor, focus on the
competing policy. Sometimes your policy argument is going to come from logic, pragmatism, or economics. Other
times, the policy is "right and wrong", which is all about emotion. If everything else is equal, appeal to high
principles like "justice," "liberty," or "dignity". Judges are lawyers, but they're also human beings.*
9. Write a Solid Brief – A strong oral argument starts with a solid foundation embodied in your written brief. Most
arguments are won before the litigator even speaks a word in the courtroom. When writing your brief, keep in
mind that judges don’t have much time. They have to read fast, so make use good headings, paragraph often, and
write short, powerful sentences. Things that will dilute the persuasiveness of your writing:
1. Exaggerating or Misstating the Record or Precedent - Write accurately, honestly and don’t exaggerate.
Developing credibility will pay dividends come judgment time.
2. Neglecting to Concede Weak Points – Don’t leave out facts or counterarguments that cut against your
case. In fact, you are legally obligated to reveal negative authority to the court. Concede the strength of
your opponent’s facts/arguments, but be sure to discuss why your case is the strongest. The best
presentation method is positive-negative-positive. (1) Start with your case; (2) Discuss negative
facts/authority; (3) Finish strong with your case again. This will only make your case stronger.
3. Clichés - Write your own original sentences and don’t rely on trite clichés.
4. Grammatical Errors - Rearrange sentences and paragraphs and edit your work a dozen times.
5. Overly Emotional Language - Angry briefs are a distraction. Save your passion for the oral argument.
8. Make Your Arguments Clear – The oral argument is a chance for you to make the judge want to rule in your
favor. After introducing yourself, begin with a clear one-line opening that lets the judge know what the case is
about (in language that is favorable to your side). After the issue statement, identify the relief you are asking for
and then give the judges a clear and concise roadmap of your arguments (e.g. “Appellant seeks reversal of the
district court’s granting of summary judgment because: “First… Second… Third…”). Each issue in your roadmap
should be presented in a sentence or less so the judge can readily understand it and know what you are going to
be talking about. Present your strongest arguments first! Most courts will let you go 30 seconds. Some judges will
jump in before you can even get a "may it please the court" out. Your roadmap should be 30 seconds long. If you
can't make your case clear in 30, that's a sign that you don't really understand your case.
7. Get to the Point – Cut to the chase right away and focus on the real issues. Do not waste time recounting facts.
As soon as you’ve given the court your roadmap, move directly to the first issue you listed and begin presenting
your argument. The last thing you want is for a judge to question you on an incidental side note you brought up
for fifteen minutes and have to steer the panel back to what you really need to talk about.
*
For more on persuading judges, we recommend two books: Legal Writing in Plain English by Bryan Gardner, and Making
Your Case by Bryan Gardner and Hon. Antonin Scalia.
6. Paint a Picture – Be a good storyteller. Illustrate your theory of the case creatively and concisely. If you can
make the judge see the case the way you do, he/she will be more likely to rule in your favor. If you spend your
time just rattling off the law, the judge may tune you out and you will have wasted your time.
5. Be Ready to Answer Questions Right Away – A “hot bench” will jump right in within the first couple of
sentences or even words of your argument! When the judge starts speaking, stop immediately and listen. There
are 6 general types of questions: Precedential (e.g. analysis of past opinions), Forecasting (e.g. contemplating how
your argument would affect different situations in the future), Hypothetical (e.g. asking you to apply your
argument to a different scenario), Factual (e.g. Clarifying on Record), Softballs (e.g. restate your strong points in
order to convince another panel judge who is still skeptical of your position), and Intentionally Misleading (e.g.
trying to get a concession). Don’t answer until the judge is done asking. Begin every answer with “Yes, your
honor” or “No, your honor” as much as possible. If you cannot understand the question, you can ask the judge to
clarify. If a judge tries to push you into a corner so as to make a concession, stick to your guns and keep
rephrasing and repeating your position. For example, the Judge cites case law and asks you, "counsel, isn’t it clear
that opposing counsel is right about this?" Be prepared to correct the bench. You don’t want to be led down a
path to concede something you don’t want to concede. Even if they start calling you stupid and saying things like
"didn’t you understand this case? How can that possibly be so," maintain deference and composure.
A “cold bench” is a different challenge altogether. If the bench is going to sit there like a silent jury, you will have
to deliver your full argument like a prepared speech until they start asking questions or your time expires.
4. Conversation is Good – Most judges want to have a conversation with you, not have you give them a lecture.
Be professional, but personable in exchanging eloquent dialogue with them. Show poise and grace, and be calm
and confident in your answers. The smoothest thing you can do is take a question from the bench and fluidly
relate it back to your message in the outline (i.e., “Yes, your honor, and that is why Appellants argue . . .”). In a hot
bench, you might find yourself being lectured by one or more judges and even judges who are fighting amongst
themselves. Stand there and wait until the court is done letting off steam. If they throw out multiple questions at
once, ask which one they would like answered first.
3. Bring Concise Materials – Leave your written brief in your briefcase. Prepare a folder or portfolio containing
the minimum amount of notes you will need to refer to. The portfolio should contain no more than 2 pages side
by side. First page: outline of your main points. Useful especially when you have a “cold bench,” you will have
things to talk about. Second page: Intro and Conclusion. This is your message/theory of the case. Underneath,
have cases, points, and answers to potential questions tabbed for a hot bench. Make sure you use a type size
you're able to read at a glance. Though, it is best not to look down at this stuff at all.
2. Preparation! Preparation! Preparation! – It all comes down to preparation. You have to know the record, case
law, strong points, weak points, and all counterarguments. Anticipate all questions that you might be asked.
Memorize the intro and conclusion. If you are the most educated person in the room, then you will be confident
and sound convincing. Practice in front of someone so you are completely comfortable with all aspects of the
case. Ask that person to be as critical as possible so you can get the most truthful feedback possible. Remember,
judges are most impressed by counsel can look them in the eyes the whole time and speak confidently.
1. Confidence – is huge. Feeling good begins with looking good. You will likely be confronted by old-fashioned
judges. Looking sharp, modest, and likeable may pave the way towards winning a judgment. Be aware that
confidence may easily turn into arrogance or cockiness, and both are turnoffs. It’s not always what you say; it’s
often how you say it. Stay aware of your energy level. Slow it down, speak up, and articulate your points.
©Phi Delta Phi, Foster Inn, 2009