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DTCI: Oral argument: your brief’s critical supplement

March 9, 2016

By Samantha Heuttner

United States Supreme Court Justice William Rehnquist, considering the relationship between brief writing and oral argument, likened the former to a movie preview and the latter to the movie itself. To deliver a compelling experience at the trial court level:

Recognize the opportunity. Oral argument allows you to make your case come to life for the court. It is your brief’s critical supplement. You can draw the court’s attention to your strongest arguments, distinguish your opponent’s points, and explain your bad facts on your own terms. More important, you can answer the court’s questions about your case. Remember that this is a respectful conversation, not a monologue.

Master your narrative. Know the facts of your case before you step foot in the courtroom. Understand what facts are necessary to your argument and what facts are in the record. Equally important, understand how those facts relate to the legal issues at hand. Make sure you can explain your facts, the law, and what you want from the court in concise, simple terms.

Prepare. Preparation and persuasion are directly correlated. The better prepared you are, the more credible you are. Outline your argument to organize your thoughts. Take a copy of the key cases upon which you rely to court, and consider bringing along an extra copy for the judge. Determine whether demonstrative exhibits would help the court. If time allows, make a trip to the courthouse to observe some hearings in front of the judge on your case.

Practice. Gather your friends, family, or willing paralegals and sharpen your story-telling skills. Get comfortable talking about your case in the low-stakes setting of your office or living room. Ask your audience to point out your tics (verbal pauses, odd facial expressions, rapid speech) and ask questions about your case. Ditch your outline and practice your eye contact.

Arrive early. Plan to arrive at least 15 minutes early and get your bearings. Greet the court reporter and take time to introduce yourself to opposing counsel. At this point, there is little point trying to memorize last-minute facts or cases, so try to relax and organize your thoughts.

Deliver. Let the judge know up front why you are there and what you want. There is no need to build suspense: Get to the point. If the judge has questions, answer them directly and honestly and, if possible, weave the answers into your argument. Respectfully ask the court to clarify a question if necessary. When it’s your opponent’s turn to argue, listen carefully. Be sure to address any points your opponent raises in your main argument or on rebuttal.

Oral argument is your brief’s invaluable counterpart. Make the most of it.•

This is one of an occasional series of practice tips for new attorneys by Ms. Huettner, who is an associate in the Bloomington firm of Clendening Johnson & Bohrer. The opinions expressed in this article are those of the author.
 

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