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Escape the Three Biggest Mistakes of Oral Argument

By Alexander T. MacDonald


Oral argument is among Western Civilization’s oldest arts. It’s a tradition handed down from Athens’ Demosthenes, to Rome’s Cicero, to Britain’s Churchill, and now to today’s lawyers—that is, to you. Yet despite this long tradition, modern practitioners can’t seem to perfect the art. Even within the narrow slice of advocacy practiced by America’s appellate lawyers, some mistakes crop up over and over. Many of those mistakes are obvious and easily avoidable. Here are three of the most common:


Don’t underprepare. Some people will tell you that you can prepare too much for an argument. Those same people usually say that preparing too much will make you sound rehearsed or robotic. They claim that they make their own best arguments on the fly.


They’re wrong. No one presents a great oral argument off the cuff. Every trenchant point or witty riposte, however seemingly spontaneous, springs from the unseen and unglamorous work of preparation. To paraphrase Mark Twain, a great impromptu speech takes about three weeks to prepare.


The point is that there is no such thing as overpreparation—there is only the wrong kind of preparation. The wrong kind would be to rehearse a point-by-point argument that’s little more than a speech. Worse still would be to simply memorize your brief. Judges aren’t interested in hearing your brief read back to them. They already know what’s in your brief because they read it.


So how should you prepare? Simple: learn your arguments front to back. That means going beyond a surface-level understanding. You have to grapple with the law, delve into the facts, and know how the two interact. Most important, you have to learn the record cold. The judges will come at you from all sides and pose questions that you may have never even thought of. The only way to field those questions well is to really understand your arguments.


And you won’t really understand your arguments until you practice them. That doesn’t mean just practicing in front of a mirror (though that can help). It means enlisting a few of your smarter colleagues to pepper you with tough questions. Choose people who are unfamiliar with your case. Ask them to read the briefs, then moot the argument. Tell them to show no mercy. The tougher your colleagues’ questions, the better prepared you’ll be.


Don’t forget about your delivery. You may think that judges don’t care about style. After all, judges themselves often say they don’t care. They see themselves as society’s ultimate rationalists. They make their decisions based on the facts and the law, not on some lawyer’s fancy presentation.


To some extent, that’s true. Judges do mostly decide cases on the merits, not on how the case is argued. But of course, how the case is argued does make a difference. Otherwise, people would never pay for good representation—or indeed, representation at all.


At bottom, judges are people. And regardless of how many years they’ve spent in school, people like pretty packaging. Study after study has shown that people are much more likely to buy a product with an attractive label than an ugly label.


So it is with oral arguments. Like it or not, the way you present your arguments can matter just as much as what arguments you make. And in a close case, your presentation may make all the difference.


The first thing to focus on is your voice. Your voice is your medium; it’s how you get your ideas across. Every argument you make, every idea you present, is filtered through that voice. For those of us who sound less like Sean Connery and more like Ben Stein, that point can be less than encouraging. But don’t despair: even if you ordinarily sound like a nasal bullfrog, you can still improve your intonation. For starters, aim for a just-slightly-higher-than-conversational tone. Make sure you’re being heard, but don’t shout. Also, use your pauses effectively. Pauses can emphasize key points or signal a transition. They can also encourage judges to jump in with questions at opportune moments (though some judges need no such invitation).


Perhaps more important, choose your words carefully. Aim for the simplest words possible that can still get your point across. Unlike you, the judges haven’t spent the last few months living with the case; they’re still trying to figure it out. You won’t help them do that by cramming unfamiliar, polysyllabic words into every sentence.


Of course, you can take these points too far. You can’t win with bad arguments, no matter how simply or melodiously you present them. But as an advocate, you’re looking for every edge you can get. And in a close case, a pleasingly presented argument might just give you that edge.


Don’t disrespect the court. The first commandment of advocacy is never irritate decisionmaker. And yet, advocates frequently do things during oral argument that seem practically calculated to angering the judges. For example, some advocates dodge tough questions, either by ignoring them or promising to answering them later (and then never doing so). These advocates may think the judges won’t notice or will forget. But rest assured, the judges will notice, and they won’t forget.


Other advocates answer questions with their own questions, perhaps thinking they’ll stump the judges. Some even have the temerity to explain why the question wasn’t the right one, or even a good one. If you think those are good persuasive tactics, you may want to consider a different line of work.


By contrast, the expert advocate always thinks about the argument from the judges’ perspective. Judges don’t view advocates as adversaries; they view them as resources. When the judges ask questions, they’re looking for information that will help them reach a correct and just decision. If you answer in the way best calculated to help them do that, you’ll gain credibility and good will.


Of course, not every question comes from a good place. Some questions are downright hostile. The judge posing such questions has likely already made up his or her mind about the case. No answer you can give will persuade him or her. But your answer might still persuade the judge’s colleagues. So stay respectful, answer the question as best you can, and move on. Don’t try to answer the questioner’s acidity with your own. That way lies a wasted argument and a lost case.


Avoiding these mistakes won’t alone guarantee a victory. You can’t become an expert advocate simply by avoiding obvious mistakes. But avoiding those mistakes is the first step toward mastery. And if we’ve learned anything about oral argument over the last two millennia or so, it’s that mastery is a process, not a result. So start by purging your presentations of these three mistakes—you’ll make Demosthenes proud.


Alexander T. MacDonald is a 2012 graduate of the William & Mary Law School and currently works as the acting Chief Counsel of Employment Law in the Office of the General Counsel for the U.S. Postal Service. He is also Editor-in-Chief of the Practice Tips Series and Executive Editor of Docket Call. He can be reached at