Litigation

Appellate Court: Never Read Your Argument

By Evan Schaeffer

It's a common tip for making oral arguments in appellate courts: never read your argument.

Not only is it boring for the judges, but you won't be able to respond easily to questions, because it will be harder for you to get back into the flow after you've answered. You'll also find it more difficult to respond to your opponent's arguments since you've set everything in stone beforehand.

If you're someone who can't help but write out your argument as part of your preparation (as I am), here's how to make sure you don't read from your script when it's time for your argument:

• As part of your preparation for your argument, script it out. Allow the script to evolve as your argument evolves.
• Practice your script. Revise if necessary. If it makes you feel better, even chart out where you're going to emphasize particular words, phrases, or pauses.
• A day or two before the argument, disassemble the script by turning it into a bare-bones outline. The idea is to replace entire paragraphs of argument with a few words or phrases that will keep you on track if you need to glance at the outline as you proceed, e.g., "introduction," "standard of review," "facts," and so on.
  
• Begin practicing your argument from the outline. Since you've already practiced your script, you'll find it easy to make your argument without it. Even so, new ways of making the argument might occur to you as you are "thinking on your feet" -- add these to your outline as they occur to you.
• Finally, when it's time to get up to make your argument, take your outline to the podium and leave the script at the table. Since you've been practicing from the outline, you won't miss it a bit.

This is my own personal oral-argument-preparation technique. Although I'd never thought about it closely before, I paid attention to what I was doing last week when I prepared for an oral argument that I did on Tuesday. Result: a complicated argument made in a conversational tone that didn't (apparently) make a single judge doze off. Mission accomplished.

Full post as published by The Illinois Trial Practice Blog on November 08, 2007 (boomark / email).