Make a running list of questions you might have to answer about the case. Don’t skip the ones that scare you; they’re the most important. Write out full answers. You’re not memorizing these, just coming up with the words you want to use and any necessary citations.
(I print out my prepared answers and bring them to argument, in case someone wants a citation for something offbeat. This has never yet been necessary.)
Then practice talking to yourself. Ask yourself the questions and answer them out loud. Walks are good for this. So is the shower. It’s very important to speak out loud, because you will develop muscle memory—and you’ll learn to avoid phrases that sound bad.
Everyone had their own methods but this one, which I always use, gets you “fluent” in your argument. You need real practice in speaking your argument out loud—a lot of it. So that you’re not expressing yourself verbally for the first time up there in front of the panel or judge.
This is most helpful to me. In cases of a hot bench, you basically have to abandon your little outline and just know your answers to discreet questions.
Answering the judges' questions is the main reason you're there. That's not novel, but that it to all prep. People might suggest you "know the record," but what does that mean? When I prep, I come up with any question I think a reader of the briefs might ask - even "stupid" questions.
You won't anticipate everything! And that's fine; often thinking through Questions A & B will help me answer orthogonal Question C at OA that I did not anticipate.
Also, helping anticipate questions is one thing moots are helpful for (if you have that ability) -- or even just getting someone fresh to read the briefs and give you a list of questions they might have.
I am super grateful to have a mentor who did not work on this case and agreed to read the briefs and moot this with me. It’s been a game changer talking the case out with him.
It's impossible to anticipate everything. If you have absolutely no response to a question (especially if it's out of left field), the fall-back is "I don't have that information at hand, but we'd be happy to submit supplemental briefing on that question if Your Honor would like."
Can't top the substance here. Fantastic advice. But in the last few minutes before you're called - several deep breaths to reset your nerves and refocus. But as a mentor told me before my first argument, remember that if you're not nervous, you're not paying attention. It's natural.
One more thought—whether you are the appellant and using your rebuttal time or the appellee, frame your argument around what the panel has asked about. It’s easy to want to stick to the prebaked plan, but that may not actually address what the panel has told you they care about. Listen!
You have gotten lots of great advice. One additional suggestion—record yourself practicing answers. I often found that I talked myself into my answers and that the last few lines of my response when practicing were often what I should lead with at argument.
Make sure your mooters know they can give you honest feedback. A mooter who is worried about seeming mean or hurting your feelings is not as helpful as one who is really just there to help you get better.
Make a cheat sheet of relevant facts and where they are in the record. It is easy to sometimes over focus on the law, but a lot of the questions you get are getting deep into your facts. And when you can rattle off a fact with a record siteseamlessly, it is helpful
I have three guidelines for myself: (1) one page of paper with the three best mantras in your favor - simplify; (2) at least one of those arguments should undermine your opponent’s authority- give the court something new; and (3) the bench will hit your weak points - don’t overlook them
Don’t take a script or even a detailed outline to the lectern. Know the arguments so well that a one-page bullet list can prompt you. It’ll help you maintain eye contact with the judges.
When my new associate needed to prepare for her first oral argument and when I did not have a topic for my podcast that week, Tim, Kyla and I recorded an episode on best tips for preparing for oral argument: https://www.buzzsprout.com/1093703/episodes/13715294
Questions from the bench aren't an attack, they're an invitation. You want it to feel like a conversation and an opportunity to talk about the aspects of the case that the court thinks are important.
Concessions can be a powerful way of building credibility but make sure that you’ve thought through, ahead of time, what concessions you can afford to make and where you have to stand your ground.
Best advice I can give is always answer the judges' questions immediately. Saying "I'll get to that" is the kiss of death. They are telling you what interests them, so go where they want you to go.
A lot of judges ask some version of the "yes, but" question. It's usually a hostile question but framed where you have to agree with at least some of it. ("Isn't it true that Defendant A never knew of the discrimination? How can he be liable?").
It's ok to agree and then explain why that doesn't hurt your case. ("Yes, he didn't know but he created a system where he deliberately prevented such knowledge from getting to him which makes him liable under Parrish" or whatever).
I usually do an "expanding" phase where I try to learn everything, then a "contracting" phase where I practice emphasizing and transitioning to 3 key points.
Also, it's okay to pause and think before answering, especially if nervous. Judges appreciate thoughtfulness.
The best advice I heard about pausing before answering was “listen for the silence.” If you can hear that moment of silence (i) you are not interrupting the judge, and (ii) you have paused long enough—but not too long—to answer the question.
Avoid referring to the opposing party as “your clients” when speaking to the judge - essentially accusing the judge of being on the other side. Saw a guy try that in court (not clear if it was intentional or not) and it got him a 10 minute scolding.
Recognizing softballs can be surprisingly hard. Don't automatically assume that every question is hostile. Your mooters can also throw in a softball to keep you in the right frame of mind.
When you get a softball, try to use it. "You're right your honor, and that's true for another reason..."
Remind yourself that it is not a performance. Even if you say "um," stumble over a word, or pause for what seems like too long (but probably isn't), it's the substance of what you say that matters most. If you are not naturally glib or flamboyant, don't force it.
It's just the best. You've been working so hard on this narrow issue, and there are like four people in the whole world you can really talk to about it. And now, three more smart lawyers want to talk with you about it! They've read up on everything, and they want your help to understand it.
And with my fmr. public speaking professor hat on: People get nervous when they stand up and speak. Expect to be nervous—expect to feel the things you feel in your body when you're nervous—so that you don't get scared about being nervous. It's good and normal.
One thing that honestly helped me is listening to some famous appellate lawyers' OAs and discovering that they're nervous too. Their voice is strained, they're talking fast. It's normal and the judges are used to it.
1. You are the most well-informed person about your case.
2. If you know the panel ahead of time it's great to cross reference the panelists with your key cases. It will both give you an idea of where the panel may stand and also an opportunity to say "as Judge X wrote for the court in Y."
A) Agree with #1. Your job is to explain to the judges (who don’t know the case as well as you do) why you win.
B) Partly agree with #2. It’s great to cite good cases written by judges on your panel. But be careful with “as your Honor wrote in x,” — some judges hate that & it sound like sucking up
Yes I suppose there's a fine line but I think it's always good to demonstrate that you know the judges wrote specific cases that are relevant to yours. And even if you don't mention it at argument it's essential to know where the judges fall on the issues.
I agree with Elizabeth on (B). Some judges react very badly if you try and name-check them. Judge Easterbrook once explained why he hates it as (paraphrasing) "when the judge is writing for the Court, he's writing for the Court, not for himself."
The basic idea is this: You probably have three points with a couple of subsidiary points each. Plan to argue them in order, with transition phrases between each point, INCLUDING a transition from point 3 to point 1.
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When you get a question, DON'T try to give the best answer & return to where you left off. Instead, figure out which point in your arg best answers the question, give that point, and continue your argument from there. If you get to the end, start over, skipping what you already said.
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Most important: Don't be limited by the literal words of your transition phrases. The court doesn't listen to them. So you can say, "and that's why" and move on to something that does not remotely explain the thing you said before. Nobody will notice.
If you think you may have a hot and hostile bench only reserve 3 minutes or less for rebuttal. This way you hit your rebuttal points quickly, but the red light goes on before Clarence Thomas Jr. can give you a hard time.
Hands down the most helpful thing for me has always been the moot. Find a few colleagues you trust who can be a moot panel for you and who won’t hold back from asking you tough questions and giving constructive criticism. The moot can really help you see areas you need to focus on more.
Not a lawyer - all these replies are pure gold, and are giving me ideas to prep for talks and conferences, and also to plan me upcoming PhD defense. Thank you!!
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I also take up a paper outline with short case citations and/or record cite. I put on top a reminder to reserve rebuttal time when appropriate. I also bring up a page or two from the record or the order/judgment if I think the exact wording is important and I want to quote it to the court.
For me, I use two single page sheets. One has the outline of my argument, the other has the major cases and a brief, one sentence summary of their holdings, that I take with me to the podium.
One cheat sheet of record cites.
One cheat sheet of cases in the same format as yours
One scratch paper with something resembling an intro and points and whatever I wrote down while the other person was talking.
I bring copies of the briefs, the lower court opinion, and the statute at issue. They’re all in a binder and usually I don’t look at them. But twice, a judge has asked me about a specific section or paragraph, and I’ve flipped to it to address the question.
That's a lot of paper to bring up to the podium. I have those things on counsel's table. Copy of the statute isn't a bad idea depending on the nature of the argument.
I bring a binder up with me (with tabs etc.) and it’s fine. Counsel table also works; I just like to have it handy. In terms of my prepared remarks, it’s a two-page outline and whatever I scribble on that. Usually I don’t turn to anything else during the argument.
I have 4 cheat sheets, each taped to one "side" of a manila folder so it's like one document. One is an outline in case the panel gets cold, one of record cites, one of case/statute cites, and the last is for whatever else I need for the case. (complicated factual timeline? put it on sheet 4!)
I also like writing my notes on the inside of a file folder than you can always have the brief inside, but find your case citations easily from your outline.
I always write out the first few words that should come out of my mouth to begin my argument, and I bring that paper with me.
ChatGPT also can be your friend! Upload the briefs, prompt it to be a judge ruling on this motion, and ask it to outline 5-10 questions it would want to ask of counsel. GL!
If you have a sympathetic non-lawyer ear at your disposal (parent, spouse, good friend), ask then for an hour or so to tell them about your case and your argument. The questions they come up with will be really helpful for you to think through.
If a judge asks a yes-or-no question, the VERY FIRST word out of your mouth should be either “yes” or “no.” (You can say something like “yes, and that’s because…” or “no, but not for the reason you may think. You see,..” but answer their question first and THEN explain).
Especially if you're new, don't use the judge's names. Just refer to everyone as "your honor." And if you are speaking to one judge about another's comments, say "your colleague's question," etc.
Stating correct names in the heat of an argument is tough. Even the best will mess it up sometimes.
1) Don't evade the question, but if you're really not sure what it means, don't try to answer it, but restate it to make sure you're answering the question, i.e. "If I'm understanding your honor's question correctly, you mean X?" They say yes - answer; they say something else - answer that question.
2) Don't spike the football. Like at a deposition, if you think you've convinced them on a tough point, move on and don't look back unless they make you.
3) On the same note, if you're winning, don't feel compelled to go through your whole outline or use all your time.
A mentor in my first year in practice told me that you need to know two things - First, whether you win or lose is not a reflection on your ability as a lawyer. Second, and more importantly, your ability as a lawyer doesn't define you as a person.
Corollary—be yourself, within reason. Some have a professorial style. Some add some passion into what they say. Do what fits you. If unsure whether something goes too far—try it at your moots. The mooters can pull you back more than they can spice up your presentation.
Even though this is your first OA, you belong there. Experienced lawyers underestimate new lawyers at our peril. If you can, get to the courtroom early. Stand at the podium. Sit at counsel table. Get used to the courtroom that you've earned a place in. (Watch other OAs there, if possible, too.)
Finally, after argument, step to your opposing counsel’s table and offer to shake their hand. If that’s normal behavior where you are, you’ll meet expectations. If it’s unusual, you’ll be that new lawyer who was unnecessarily extra-professional. A win either way.
One more point on this excellent insight: This applies to all aspects of practice. Be a professional, be confident, but be you. In court, with clients, depositions, meet and confers. You’ll feel better if you’re authentic, and others will react to you better.
The higher up you go in the legal hierarchy, the less your argument means to the judges/justices. At the Supreme Court level, they’ve already made their minds up and likely have their opinion already written. What you say will mean nothing.
That helps me with the nervousness.
Case in point: Meredith v. Jefferson County Board
of Education, which ended voluntary school desegregation. The attorney was a local Louisville attorney. His brief to the Supreme Court was two pages. His oral argument was something like one minute. And he won.
Have a 30 second intro that you tell the court how you want them to rule. Have a 30 sec to one minute closing doing the same. Then if nothing else goes where you want you’ve at least said it.
Comments
JK, you’re gonna be great!
Answer the question you're asked.
Know your facts.
That's really all I've got, you'll do great.
comfortable conceding—credibility matters—and how your concession does/does not affect your position.
Since he took that one, I’ll add: don’t fight the hypothetical. It will irritate the panel and eat up your time.
It's scary to hear b/c judge knows a main fact.
But new lawyers hate agreeing to a hostile fact.
Also, it's okay to pause and think before answering, especially if nervous. Judges appreciate thoughtfulness.
Good luck!
When you get a softball, try to use it. "You're right your honor, and that's true for another reason..."
https://www.howilawyer.com/054-panel-opinion-oral-argument-techniques-from-judge-patricia-millett-joe-palmore-and-prof-tiffany-wright/
2. If you know the panel ahead of time it's great to cross reference the panelists with your key cases. It will both give you an idea of where the panel may stand and also an opportunity to say "as Judge X wrote for the court in Y."
B) Partly agree with #2. It’s great to cite good cases written by judges on your panel. But be careful with “as your Honor wrote in x,” — some judges hate that & it sound like sucking up
https://repository.law.miami.edu/cgi/viewcontent.cgi?article=4584&context=umlr
I love this and have found it so useful and practical
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One cheat sheet of cases in the same format as yours
One scratch paper with something resembling an intro and points and whatever I wrote down while the other person was talking.
ChatGPT also can be your friend! Upload the briefs, prompt it to be a judge ruling on this motion, and ask it to outline 5-10 questions it would want to ask of counsel. GL!
Stating correct names in the heat of an argument is tough. Even the best will mess it up sometimes.
Best thing to do is to take the least offensive approach and avoid doing anything that would throw you off of your groove.
Be prepared to discuss anything about the case, even if it's not relevant to the motion.
3) On the same note, if you're winning, don't feel compelled to go through your whole outline or use all your time.
A mentor in my first year in practice told me that you need to know two things - First, whether you win or lose is not a reflection on your ability as a lawyer. Second, and more importantly, your ability as a lawyer doesn't define you as a person.
That helps me with the nervousness.
of Education, which ended voluntary school desegregation. The attorney was a local Louisville attorney. His brief to the Supreme Court was two pages. His oral argument was something like one minute. And he won.