PRESENTING THE ORAL ARGUMENT

EVERGREEN SUPREME COURT
APPELLATE ADVOCACY PROJECT

PREPARING AND PRESENTING THE ORAL ARGUMENT

Purposes of Oral Argument
There are some fundamental differences between the oral argument you will present before the Evergreen Supreme Court and the one you wrote in your appellate brief. Two realities should suggest to you a great deal about those differences: one, the judges will have read your brief prior to your oral argument, and two, you will have a limited amount of time in which to present your oral argument. Clearly, you want to make the best use of your and the judges’ time.
It may be helpful first of all to understand the purpose of oral argument from the viewpoint of judges. Clearly, they will seek clarification of issues that they don’t understand or that seem confusing, especially issues that seem important to deciding how they should rule in the case before them. They may want to test the viability, practicability, impact or logic of the principles you are asking them to follow or adopt. They are aware that this will be the only chance they will get to ask you questions that they have. They need to know the answers in order to do their job of rendering a just decision.
From your viewpoint as legal counsel, the oral argument clearly is an opportunity to convince the judges to rule in your favor. This is your only opportunity to meet eye-to-eye with the persons who will decide the outcome of your case. Clearly this means that you want to make sure that the judges understand the case and your position on it. You must demonstrate that your position is viable, practical, reasonable and appropriate. You must also welcome the opportunity to address concerns that the judges may have about your position.
All of the above suggests that you must set priorities and present only the most important points that you can fit into the limited period allotted you for oral argument. It also means that you will be able to discuss only crucial authority (precedent) and policy. Since the judges will have questions, sometimes many, don’t assume that you will be able to use your allotted time exactly as you want or hope to use it.

Order of Argument
Each co-counsel will be allotted eight minutes for oral argument, a total of 16 minutes for the petitioner co-counsel team and 16 minutes for the respondent co-counsel team. The petitioner co-counsel will present their argument first, followed by the respondent co-counsel. Either side may reserve time for rebuttal. So, the order is as follows:
Argument of first counsel for the petitioners
Argument of second counsel for the petitioners
Argument of first counsel for the respondents
Argument of second counsel for the respondents
Rebuttal (if any) by petitioner co-counsel
Rebuttal (if any) by respondent co-counsel

1. If you are counsel for the petitioners, you will argue first. You must start out by telling the judges in two or three sentences how the case got to the Supreme Court, the type of case it is, and what your position is. Whether petitioner or respondent, you must introduce your co-counsel and give a brief overview of the points each of you will argue.

2. Counsel for the petitioners also must state the facts of the case to provide the foundation for the arguments that will be made. However, the facts should be stated as briefly as possible. You cannot afford to waste valuable time providing detail that the judges already know.

3. Counsel for the respondents should not merely repeat the facts that the petitioners have already presented. You may want to stipulate that the facts are as presented by the petitioners. Or you may want to stipulate the facts as presented except for something that you want to rectify or emphasize. One exception to this stipulation of the facts may be a strategic decision to focus on them if your side of the case is particularly strong on the facts.

4. Keep the points you do make as simple and direct as possible.

5. Focus on the common sense and logic of your position on the case. Don’t get bogged down citing precedent unless it is crucial to your case.

6. Be very informed about your case so that you can readily answer questions about it.

Other Techniques

1.	Maintain good eye contact with the judges. Talk to, not at, them.
2.	Don’t read your presentation. Write an outline of the points you plan to make. If for some rare reason you need to read something in your brief, read to the court, not at your paper. The rare reason might be, for example, to quote some language that is pivotal to your argument.
3.	Wait for the presiding judge to recognize you before you begin. Begin by saying, "May it please the Court. My name is Jane Doe, co-counsel for the… ."
4.	Speak slowly and enunciate clearly. Do not race through your argument. Pause occasionally.
5.	Stand erect, but don’t be rigid. Have your hands at your side or lightly on the podium. Do not put your hands in your pockets. Do not finger pens or other objects. Do not jingle coins. Do not cross your feet or your arms.
6.	Avoid repetitive nervous actions such as frequent shifting of your body, fidgeting with your hair or touching your face, or picking at your clothing.
7.	Welcome the judges’ questions, even if they disrupt the flow of your planned presentation.
8.	Answer the judges’ questions respectfully and confidently. Listen to the questions carefully and answer them the best you are able. If possible, begin your response with "yes" or "no" and then elaborate. Be respectful but firm. Don’t concede an argument merely because a judge seems to disagree with you.
9.	Don't speak in a monotone. Vary your volume.
10.	Be flexible and ready to modify the presentation you planned. If time runs short, you most certainly will have to discard the least important matters in your presentation. If a judge asks you a question that is answered by a point you had planned to make later in your argument, deal with that argument then and there. Don’t postpone the answer. Don’t say, "I plan to cover that point later in my argument." One exception may be if your co-counsel is going to cover a particular point that a judge asks you about. In that case, give a brief answer and say something like: "My co-counsel will be addressing that very question in greater detail."

1.	If you are counsel for the petitioners, you will argue first. You must start out by telling the judges in two or three sentences how the case got to the Supreme Court, the type of case it is, and what your position is. Whether petitioner or respondent, you must introduce your co-counsel and give a brief overview of the points each of you will argue.
2.	Counsel for the petitioners also must state the facts of the case to provide the foundation for the arguments that will be made. However, the facts should be stated as briefly as possible. You cannot afford to waste valuable time providing detail that the judges already know.
3.	Counsel for the respondents should not merely repeat the facts that the petitioners have already presented. You may want to stipulate that the facts are as presented by the petitioners. Or you may want to stipulate the facts as presented except for something that you want to rectify or emphasize. One exception to this stipulation of the facts may be a strategic decision to focus on them if your side of the case is particularly strong on the facts.
4.	Keep the points you do make as simple and direct as possible.
5.	Focus on the common sense and logic of your position on the case. Don’t get bogged down citing precedent unless it is crucial to your case.
6.	Be very informed about your case so that you can readily answer questions about it.