Former Chief Justice William Rehnquist noted in his book The Supreme Court that there are four “species” of poor advocates:
- The “lector” who simply reads his argument
- The “debating champion” who has a strong grasp of the case but fails to listen and properly answer questions
- The “Casey Jones” who knows the cases but tends to race ahead without “pick[ing] up passengers along the way
- The “spell-binder” who relies on rhetoric rather than careful analysis
In order to avoid becoming one of these poor advocates (or something equally bad), here are a few do’s and don’ts for your oral arguments.
Nine things you shouldn’t do during an oral argument
- Rush. Keep calm and speak with deliberate speed.
- Read an argument. Memorize your preferred order of ideas and approach with those simple outline points.
- Miscite the record or authority. If your opponent miscites something, then carefully and respectfully point it out – but you’d better be right!
- Guess. If you don’t know the answer, admit it. Try to avoid this by anticipating every question the judges might ask. (Actual practice tip: If necessary, offer to write a supplemental brief if it would help the court.)
- Speak over a judge. Even if the judge interrupts you, stop taking. Immediately.
- Chew your fingernails. Or twiddle your thumbs. Or any other distracting habits: playing with your tie or necklace, fiddling with papers, swaying at the podium, etc. Nervous ticks can be very distracting to the judges on the bench; experts say that 55% of your impact on an audience is your appearance, not your words.
- Ask how much time you have left. It’s your job to keep track, so do so.
- Ask the judges questions. You’re there to answer questions, not ask them. You can verify if your understanding of a question is correct and if the court has further questions, but that’s it.
- Present your argument as an opinion. Tell the court what the law is, not what you think it should be. Avoid first person singular and “appellant contends, it is our position that, in our view…”
Nine things you should do during an oral argument
- Sound like you care. Even if you think it’s the most boring issue in the world, the judges should never sense that.
- Answer questions directly, completely and immediately. Never say “I will get to that in a minute.”
- Make eye contact. Don’t just look at one judge, connect with each one on the panel.
- Be conversational, but not overly familiar. Address judges much like a junior associate would address a senior associate or partner.
- Address judges with correct terminology. In the highest court, it’s Chief Justice or Justice followed by their last name. In the intermediate appellate court, it’s Chief Judge or Judge followed by their last name. If you’re bad with names, then use “Your Honor.”
- Wear proper attire. Stay away from the trendy tight and short suits. Don’t go crazy with the hair product. Make sure your tie isn’t crooked.
- Be credible.
- Keep it simple. Be brief and to the point. Use plain English, not pretentious expressions or legalese. (You should also write this way, but that’s fodder for another blog post…)
- Be cautious with humor. Don’t tell prepared jokes. Most of the time courtroom humor goes seriously wrong.
Last words of advice
Start prepping early, make sure that you have all of the elements of a great argument and follow these do’s and don’ts to ensure that you rock your moot court tryouts. Go forth, advocate, and good luck!