Oral argument - learn by listening

Oral argument is an art. The most effective appellate advocates know how to make an oral presentation that is focused, responsive, insightful, and, most importantly, compelling. To some, it is a natural born skill. To others, an effective oral argument is a daunting, and seemingly unreachable goal.

Like most skills, the quality of an oral argument presentation can be improved through study and practice. Here are some thoughts on how to improve your skills as an oral advocate.

Get a clear idea of what you are trying to accomplish. There are any number of thoughtful and helpful articles and texts that talk about oral argument from the perspective of the court, the lawyers, and those who have been both. Some good resources for getting started include Myron H. Bright, How to Win an Appeal: The New Ten Commandments of Oral Argument, 32 Trial 68 (July 1996); Jason Val, Oral Argument’s Big Challenge: Fielding Questions from the Court, 1 J. App. Prac. & Process 401 (Summer 1999); and Michael A. Wolff, From the Mouth of a Fish: An Appellate Judge Reflects on Oral Argument, 45 St. Louis U. L.J. 1097 (Fall 2001).

Careful preparation is critical to presenting an effective oral argument. In her article Twenty Tips from a Battered and Bruised Oral-Advocate Veteran, 37 Litig. 1 (Winter 2011), Sylvia Walbolt emphasizes the importance of being prepared: “The most important lesson of all is to be prepared. There is no better way to be sure you are as prepared as humanly possible than to subject yourself to a mock oral argument before some folks who are completely cold to your case other than from the briefs. Being prepared is better than being a great oralist. It also is better than being well-dressed. One appellate advocate appeared for argument in a beautiful custom-made suit. Unfortunately, he was not well prepared to argue, causing one judge to comment to another ‘Better dressed than equipped.’”

In preparing for oral argument, it may be helpful to think about the following dos and don'ts. You might also want to consult the much longer list of tips in Art of Advocacy: Appeals §§ 42.01-.05 (Diane B. Bratvold & Eric J. Magnuson eds., 2013), if you find these useful.

DO:

• Focus your argument on two (or at most three) critical issues, and get them out early.
• Answer the court’s questions immediately and directly, even if you had planned to address the question later in your argument.
• Engage in a conversation with the court, in which you gently persuade the judges.
• Have a detailed outline of your argument prepared, but be flexible if the judges’ questions make clear that they want to go in a different direction.
• Tell the court explicitly what relief you are seeking.

DON'T:

• Rehash your entire brief.
• Be annoyed if a judge interrupts your argument with a question.
• Read your argument. Or long passages from any text, unless you first explain what you are reading and why it is important.
• Be so rigid in your presentation that you miss the opportunity to persuade the judges on the issues in your case that are troubling them.
• Leave the court wondering what you are asking them to do, or why they should do it.

But self-teaching has its limits. Jimi Hendrix may have been able to teach himself how to become a guitar maestro, but very few of us have that innate ability or dedication. For most of us, it helps to watch virtuoso performances, or in the case of oral argument, listen to them.

Fortunately, the Internet has made a wide variety of oral argument recordings readily available to lawyers seeking to hone their oral advocacy skills. The U.S. Supreme Court’s website has recordings of all of the oral arguments from the last five terms. The Oyez Project, which is operated by the Chicago-Kent College of Law, provides audio of the oral arguments in all cases dating back to the 1968 Term. Selected arguments are available for the terms from 1955 to 1967.

The U.S. Court of Appeals for the Eighth Circuit also maintains an audio archive dating back to 2000. Their database is searchable not only by date, case number, or party name, but also by the name of the attorney who argued. If you are aware of a particular advocate whose style you admire, that feature makes it easy to locate recordings of that lawyer’s arguments.

If you are trying to sharpen your skills in preparation for argument in a Minnesota state appellate court, you might find it especially useful to watch to some arguments before the Minnesota Supreme Court. Since 2005, the Minnesota Supreme Court has been archiving video of the oral arguments in most cases and can be searched by case name, date, or case number. And you can always sit through a morning of arguments at the Minnesota Court of Appeals, witnessing the good, the bad and whatever else happens.

Learn from focusing on the important parts of an argument – the opening, the closing, and the responses to questions. Listen to how the advocate handles himself or herself in response to a variety of questions from the court. And pay attention to the cadence and style of advocates, which differs from person to person, but can be effective in a variety of ways.

Lawyers can also improve their oral argument presentations by becoming more engaging public speakers. Judges, like anyone else, will find it easier to stay focused on and follow your argument if your manner of speaking is compelling. Listening to non-lawyers who are also engaging speakers can help you develop your own style. Many TED Talks feature polished public speakers in relatively short videos on any number of subjects.

Once you have listened to a number of oral arguments, you may find yourself anxious to practice your newly honed skills. Oral argument experience can be difficult to come by, but there are some pro bono programs through which lawyers can find opportunities for appellate arguments. Two such programs in the Minnesota state appellate courts are the MSBA Appellate Practice Section’s Pro Bono Unemployment Compensation Appeals Program and Appellate Pro Bono Program. These programs provide lawyers with valuable experience and the opportunity to assist clients who could not otherwise afford representation.

Effective oral advocacy can be a difficult skill to master, but it is a skill that everyone can improve with study and practice.

Reprinted with permission of Minnesota Lawyer ©2015