How to Prepare for Your First Oral Argument

Oral advocacy is a critical skill for young lawyers to develop.  For some litigation-minded attorneys, presenting an argument at a hearing can produce images of dramatic television and movie moments and dreams of persuading a judge to agree with your position.  For others, the idea of uttering a word in open court, much less to convince an esteemed member of the bench to rule in your favor, feels like a daunting task.

Whichever camp you find yourself in, preparation will be the key to your success.  And preparation goes beyond knowing the law or factual record.  Preparation also includes getting your memory, breathing, voice, and posture ready to present the most confident, comfortable, and controlled version of yourself in the courtroom.

Master the Substance

I. Know Your Record Inside Out

While the substance of your argument is not the only important part of your oral advocacy, it is likely to be the determinative factor in the judge’s ruling.  As such, it should be your number one focus in preparation.  Make sure to know the contents of each party’s briefing or motion papers inside out.  Not only those papers themselves, but also anything cited in those papers, whether that may be exhibits, cases, or other authorities.

Be ready to cite specific pages when prompted, and make sure that any argument you are making at your hearing can be connected directly to an argument you made in your papers.  As tempting as it may be to raise a completely new argument that you came up with after briefing was complete, beware of the risk of damaging your credibility and undermining your other arguments in favor of something new that the judge may refuse to consider.

II. Understand the Standard of Review

Tailor any arguments that you have to the applicable standard of review at that particular stage of the case.  If you understand early on in your preparation how and whether the relief being sought falls within the purview of the judge on the applicable standard of review, you will be thankful for that knowledge later.  It will help keep you grounded and provide an avenue to pivot if you get stuck during your hearing.

III. Focus on Core Points

Depending on the anticipated allocated time you will have to argue, prepare to focus on a small number of core points.  Judges occasionally start hearings by highlighting a few issues or questions that they want the parties to cover and/or issues and questions they have heard enough of and do not need further argument.  If you find yourself in that situation, shift your focus accordingly.  If not, prepare to walk through your core points and then ask the judge if they have any questions or want you to cover anything else.

Setting out to cover everything will likely overwhelm you in your preparation, overstate the strength of your position, and overstay your welcome with the court.  Keep your audience in mind:  the judges and law clerks you will be presenting to have very important decisions to make while managing an endlessly busy caseload.  They do not have time to weigh every word in your papers and oral argument with equal measure; prioritizing the most important points is key.

Structure Your Argument

I. Opening and Closing

An oral argument outline should become your master document and reference guide, filled with strong persuasive points in your own voice.  The opening and closing statements in your hearing though, are likely basic introductory remarks and routine conclusory words.  Practice these opening and closing statements so that they become second-nature.  Stumbling over the name of the party you represent at the beginning of your hearing can derail your confidence, and rambling to find an undetermined ending can leave a poor final impression.

II. Structured, But Not Scripted

Do not plan on reading your outline verbatim, even if your hearing is remote and it is easily visible right next to your virtual courtroom room screen.  Have a roadmap for flexibility and then improvise the words as you go along just like you do in a purposeful conversation with someone or when you are telling a story you have told a million times.  You will not tell your story or make your arguments in the exact same way twice, but that is okay.  In fact, it is good.  Rather than focusing on memorization and scripting the precise words to use, focus on knowing the underlying law and facts, plan out a structure for your argument, and then be flexible and improvise the words you use in the moment.  That may feel uncomfortable at first, but trust in your skills and preparation.

Delivery Skills

I. Posture and Body Control

Visualize and practice planting your feet, standing still, allowing some flexibility or bend in your knees, and facing the judge straight on.  If you are able, visit or look at pictures of the courtroom ahead of time and mentally prepare to occupy the space that you will be using during the hearing.  Exercise body control and avoid making unnecessary movements.  When you move, try to do so with purpose.

II. Purposeful Breathing

Oxygenate your brain.  Make a concerted effort to do this at various point during the hearing.  When the judge is entering the courtroom, when opposing counsel is speaking, when you are walking to the podium or about to unmute yourself, and when the judge is speaking or asking you a question, take conscious deep breaths.  This is something you can practice and prepare for in your everyday life and leading up to your hearing.  It will help you stay calm, think clearly, and feel focused.

III. Energy and Speed

Channel the nervous energy that you will naturally have into energetic speech.  Being persuasive in the courtroom requires more energy than most people typically utilize in casual conversation, so prepare to present an energetic version of yourself.  But be careful not to confuse energy with speed.  As you will likely hear in your preparation and after any moot arguments, you do not want to speak too quickly or rush through your points.  Slow down your pace for clarity and do not be afraid to pause to gather your thoughts:  that moment of silence will be a lot shorter than you think.

Visual and Technical Preparation

I. Prepare Visual Aids

If allowed and sensible given your arguments, prepare simple and clean-looking visual aids.  As with your outline, do not plan on using slides to read from verbatim and do not use visual aids as a crutch.  Instead, understand that judges and law clerks are people, who process information in a number of different ways and through various different learning styles.  Prepare something to visually to convey your core points and reinforce your arguments.

II. Check Technology

When possible, check the courtroom technology before the hearing and practice pulling up any slides or presenting any visual aids.  Make peace with the idea that technology issues can happen at any time and avoid letting that possibility or occurrence throw you off in the moment.

Practice and Feedback

Practice your hearing in full with trusted colleagues, mentors, and partners.  Take any feedback with an open mind and appreciate the interruptions, tough questioning, and stress-inducing moments caused by confusion or silence.  Do not downplay the importance of mooting in front of others:  it is likely the closest thing to a dress rehearsal that you will be able to get.

Anticipate Questions

Prepare answers for tough questions and answer the judge’s questions directly.  Do not dance around the question.  If you do not know the answer immediately, have a plan for what you will say to address the judge’s concerns directly and then pivot back to your core points or wherever you feel comfortable in your outline.

Prepare to Be Persuasive

Persuasive oral argument is a blend of substance, structure, and style.  Your style will be unique to you, and you will develop it with continuous practice and feedback.  Preparation on the front end, regarding the substance of your arguments as well as the control of your mind, body, and voice, will prove rewarding in the long run.  Whether your first oral argument ends with the result you fought for or not, the preparation you put in will make you a more persuasive oral advocate throughout your career.

About Potter Anderson

Potter Anderson & Corroon LLP is one of the largest and most highly regarded Delaware law firms, providing legal services to regional, national, and international clients. With more than 100 attorneys, the firm centers its practice on corporate and alternative entity law and litigation, commercial litigation, bankruptcy, intellectual property, labor and employment, and real estate.