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Tips for Winning at Oral Argument

American Bar Association Pretrial Practice & Discovery Section of Litigation

Alex Hawkins was a colorful character who played running back for the Baltimore Colts and Atlanta Falcons of the National Football League between 1959 and 1968. He was confronted by his wife one morning as he walked into their house. She frantically asked him where he had been all night. Alex said that, because the moon had been so beautiful, he had decided to spend the night in the hammock. His wife was skeptical. She noted that the hammock had been removed two weeks earlier. Alex, however, was steadfast in his position, replying, “Well, that’s my story and I’m sticking to it.”

While it might not seem that way at first, Alex’s last line of defense provides useful advice to counsel preparing for oral argument. Let me be clear. Although Alex’s argument conflicted with what seemed to be unassailable evidence, your argument should not do the same. I’m not suggesting that your oral argument should be contrary to the evidence, any aspect of the record, or controlling legal authority. To the contrary, you should develop your argument—your story—so that it is consistent with the evidence, the record, and the law. That carefully crafted argument should be reflected in your brief and then hammered home in your oral argument. In other words, develop your story, tell it in your brief, and then stick to it in your oral argument.

Know the Record

When arguing an appeal, you must know the most significant parts of the record below. Similarly, when arguing a motion for summary judgment in a trial court, you must be comfortable with the important parts of the record before the court—the affidavits, deposition testimony, and exhibits relied upon by the parties. You should have been very familiar with the factual record when you drafted your brief. Remain conversant with that record as you head into oral argument. First, your argument must not contradict the record – or you will be on dangerous ground when you try to stick to your story. Second, you must be ready to answer the court’s questions about the record. Third, if your opponent mischaracterizes some aspect of the record, you must be ready to correct the misstatement. While it is impossible to memorize a voluminous record, you need to study and know the most important parts so that you can stick to your story.

Know the Legal Authorities and the Standard of Review

You must also know the pertinent legal authorities and the correct standard of review. In preparing for oral argument, study the most relevant legal authorities and be ready to discuss them. You must know the cases, statutes, regulations, or other authorities (e.g., Restatement sections) that the parties have relied on in their briefs. Professing ignorance about the holding in a case that has been cited in the briefs is not the way to persuade a trial judge or appellate panel.

You also must know the correct standard of review. When arguing a motion for summary judgment, remember that the trial judge must decide whether there is a genuine dispute as to a material fact and whether the moving party is entitled to judgment as a matter of law. If you represent the moving party, do not argue that your witnesses are more credible than those proffered by your opponent. If you prevail on your motion for summary judgment, and your opponent notes an appeal, know that the appellate court is reviewing the trial court’s decision de novo. Don’t ask the appellate panel to defer to the trial court’s ruling. If you don’t know the law and the correct standard of review you can’t stick to your story.

Be Organized, but Not Scripted

Organize your argument around your brief and the theme of your case. Know what you need to say and be ready to say it. But do not take a script to the podium. Scripts are dangerous. If you use a script at your oral argument, you will end up giving a speech, not an argument. Oral argument is not a prepared speech.

Instead, prepare an outline that covers the key points that you want to make during your argument. Anticipate questions that might come from the bench and think about how your answers can help you stick to your story. When you are asked questions, don’t dodge and weave. Don’t be evasive. Listen to each question and answer it. Some lawyers, especially inexperienced ones, fear questions. Don’t fear questions. Welcome and embrace them. If a judge has a concern about your case, it is better to know that concern and have the chance to address it. Sometimes a judge asks a question because he or she needs additional information to rule for you. Help the judge.

Just as it is important to listen to the questions that a judge asks you, it is also important to listen to the questions that the judge asks your opposing counsel and the answers to those questions. The answers may be weak or evasive. This gives you the chance to address the court’s questions in a stronger and more persuasive fashion. Indeed, listen carefully to opposing counsel’s argument. He or she may say things that will open a door for you to make points that help you stick to your story.

Finally, while your oral argument should be consistent with your brief—you must stick to your story—don’t be redundant. Your oral argument should not consist of reading your brief to the bench. Focus on the issues that are most crucial to your case and hit the key points that you must make to prevail.

In short, know the record, know the law and the correct standard of review, and be organized, but not scripted. If you do these things, you will be able to stick to your story and deliver an effective and persuasive oral argument.

Brad McCullough is a litigator and appellate attorney at Lerch, Early & Brewer in Bethesda, Maryland who represents businesses and individuals in a wide variety of cases in federal and state courts, as well as before arbitration panels and in mediation proceedings. He is known for taking on complex and challenging business and commercial disputes on behalf of clients from a broad range of industries.  He also is co-chair of the Dispositive Motions Subcommittee of the American Bar Association's Committee on Pretrial Practice & Discovery For more information on oral arguments, contact Brad at (301) 657-0734 or jbmccullough@lerchearly.com.
 
This article originally was published in Pretrial Practice and Discovery Section of Litigation Practice Pointers © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

 

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