How to Prepare for Oral Argument
This was originally published on Lawyerist back when I was regularly arguing motions (and the occasional appeal) and teaching appellate advocacy at the University of Minnesota Law School. But we deleted it in a site cleanup and since then I have gotten some requests for it from law professors. So I pulled it out of the archives to republish here.
Oral argument is one of the most exciting parts of litigation, and only a few lawyers are really good at it. But even if you aren’t a naturally-talented presenter, you can still improve. The important thing is to get away from your outline and use a more “modular” approach to oral argument.
Many lawyers—especially those new to law practice—prepare for oral argument the same way, by creating an outline and rehearsing as they would for a speech. They may prepare for questions by talking through the issues with a colleague, but this does not usually result in effective oral argument. What it does result in is a stiff argument, awkward recovery after answering questions, and an ineffective presentation overall.
That’s because oral argument is so much more dynamic than an outline—even if you have a “cold” bench. In order to prepare for dynamic argument, you need a more dynamic approach than an outline and a few run-throughs.
Preparing for oral argument takes a deep understanding of the law, the facts, and the arguments. Then, you need to break up your argument into “modules.” You can organize your argument (not just outline it) around your modules, but then you must practice making your argument in and out of order. Only by doing this will you be prepared to field questions and deliver your argument with skill and nimbleness, instead of rigid adherence to an outline.
Ditch the Outline
An outline isn’t inherently good or bad, but it encourages rigid thinking. Lawyers who rely on an outline alone tend to get thrown off by questions, which often results in repetition and skipped issues.
Worse, many lawyers also haul a binder (or several) full of cases, pleadings, exhibits, and briefs to the podium, which they try to rely on while delivering their arguments. I think this is because they rely on their stacks of paper in place of adequate preparation.
Of course you can use an outline if you really want to—I do—but it is important to shed the rigid thinking and intellectual laziness that outline-as-preparation encourages.
Practice Intense Preparation
There are no tricks to good oral argument, and the single most-important component of great oral argument is preparation. I realize it is one thing to say Prepare! and another to do it with a full caseload, but it is a lawyer’s duty to prepare adequately, if not better. You must find the time.
You must know four things about your case for every argument:
1. The facts. Know the facts of your case backwards and forwards. Make sure you know which are actually in the record, too.
2. The law. Although you probably researched the law at various points in the litigation, including when you wrote the brief, you should review at least the key cases before your argument, and learn them well enough to talk about the nuances without the case in front of you. The same goes for any statutes or rules involved, which you should know inside out.
You must also be able to state the rule you want the court to adopt and apply, whether it is a rule from existing law or a new one that you want the court to adopt. Enough judges have asked me about this that it has become one of my favorite questions to ask students when I judge moot court competitions—few are prepared with a rule. But if you want to win, you had better know how you want the court to do it.
3. Your argument. Make sure you can explain why your client should win. This ought to go without saying, but I have seen an astonishing number of attorneys who cannot seem to articulate a coherent reason why their client ought to win.
Your job is to convince the court that your client ought to win, and give the court a legally-permissible route to that result. Don’t forget the second part. You cannot win without it.
4. What you want. This should go without saying, too. You must be able to tell the court what you want it to do. By the way, as part of this, you should make sure the court can do what you want it to do. Your client won’t thank you for the time and expense of a motion hearing if the court doesn’t have the power to grant your motion.
Organize and Practice Your Argument
Here’s how I like to organize my argument. I write each issue I want to discuss or point I want to make on a separate index card (or piece of paper, but the idea is to keep it short—these are prompts, not parts of a script). Then, I take each index card and practice the argument around that topic or idea. Usually, the oral argument starts to organize itself as I do this, because I generally refer to other cards as I go. As the argument begins to take shape, I start laying out the cards on the floor to sort them.
As I lay all the cards out on the floor (this works great for organizing the topics you want to discuss with a witness on direct examination, too), I put them in the order that makes the most sense. Group them into the two or three main topics you need to argue. Even if your argument is going to be complicated by necessity, group it into a few main topics, if you can.
Now, turn those main topics into a roadmap. Starting your argument with a concise roadmap is helpful for the court because the judge will know right away if they are likely to get an answer to their questions, or if they should just go ahead and ask them now because you aren’t likely to cover them.
Spreading out index cards on the floor works for me, but you could also do an outline, if you prefer. I just think it works better to start with something more flexible and convert it to an outline as it starts to come together.
Whether you do an outline or not, you should also practice your argument as a single, cohesive unit. You might get a cold bench, after all. I usually run through my argument this way a few times, then set my index cards and outline aside and go for a walk. (Bring your dog, if you are preparing at home.)
With no prompts in front of you, go through your argument several more times from memory. Work through it without resorting to your outline or notes. This will force you to learn your argument much more thoroughly than if you are always relying on your notes.
Practice your argument with non-lawyers, too. If they look bored, you aren’t doing a very good job. Keeping a non-lawyer interested forces you to boil down the facts, issues, and arguments to their essentials. You can always go into the nitty-gritty (boring) details if you need to, but it’s generally better to get to the point—especially with judges.
Commit Your Argument to Memory
Outlines, binders full of reference material, and other paper and props are distractions, not performance aids. The best way to argue is from memory (although it won’t hurt to bring your index cards or outline with you, just in case—or just for show).
If you have followed my advice so far, you have essentially committed your argument to memory. Deep understanding of the facts and law will give you the ability to discuss the issues without an outline to guide you. Practicing your argument out of order helps dissociate each issue from your outline. Getting out of your office and walking as you practice will help you embed your argument in your brain. As you walk around, your brain will associate your argument with your surroundings, which will make it easier to remember your key points when you are under stress at the podium.
Your goal is not to remember your argument word-for-word; that is counterproductive. Your goal is to know what you want to say about a topic whether or not you are interrupted. If you are interrupted, you must be able to locate the question in your argument, then segue gracefully back into your argument after you answer. In other words, know what you want to say, and then cover at least the key points whether or not you are interrupted with questions.
If you have followed the steps above, you should have your argument sufficiently “memorized.”
If You Can, Moot Your Argument
Not every argument merits the time and expense of a moot session—or several. But if you can moot the issue, you will get invaluable information and feedback. If your “judges” do a good job, you will have a good idea of what you may hear from the bench. You will also get great feedback on the way you argue so that you can improve.
I’ve had the opportunity to conduct several moot sessions on both sides of the “bench,” and it has been well worth the effort in each case. Do it if you can.
Last-Minute Prep On the Day of Your Argument
Here is what works for me on the day of my argument, but what you do is not as important as having a routine that quiets your nerves and gives you one last refresher of the facts, law, and your argument.
I usually get dressed, then go walk the dog. (My hearings tend to be first thing in the morning.) While we walk, I run through my argument—out loud—two or three times (wear headphones if you don’t want to look crazy and people will think you are just on the phone). I keep it up in the car on my way to court. I don’t have my index cards or outline out when I do this.
When I get to court (always at least fifteen minutes early), I sit down and jot down my main “talking points” on a legal pad, referring to my outline if I need to. When my case is called, that’s all I take to the podium. I don’t try to review cases or the facts at this point. If I don’t know them by the time I am sitting in the courtroom, I’m not going to learn anything in those few minutes before I stand up to argue.
Preparation is key. If you have done enough, you will be confident behind the podium, and you will rarely be surprised by what happens in the courtroom. Don’t half-ass your preparation; it is always better to be over-prepared.
Published on April 10th, 2020.