Tips on Oral Advocacy From Duke Law School

Preparing for your argument? Here are some tips from faculty members and members of the Moot Court Board

General tips

What is the best thing an oral advocate can do?

“Be confident. Even great advocates aren’t perfect, and not every case is a winner, but presenting your arguments with assurance and speaking in a clear, forthright tone makes all the difference.”

“Be prepared for all levels of knowledge in a judge. You never really know in advance if you have a judge who glanced at the bench brief or a judge who’s spent a 30-year career practicing in exactly the area of law you’re discussing. Learn to read a judge’s comfort level with the material, and adjust the detail and complexity of your argument accordingly. Persuasion isn’t always the art of having the most details — it’s about knowing your audience and tailoring your message.”

“Lead with your strongest point rather than building up to it. You should have an outline of your argument and be ready to proceed if you are not interrupted early on, but it’s unlikely that you will get through many of your remarks as prepared. Accordingly, be sure to amplify the most important aspect of the case at the start and try to articulate the theme of your argument in the first sentence or two.”

“Be able to steer the conversation by smoothly transitioning between questions and arguments. Doing so also creates a convincing yet conversational style that puts judges at ease.”

“Where possible, weave into your argument the idea that you are not only correct on the law, but also seeking a just result. Although focused on the legal analysis, the judges are attuned to fairness considerations and can be persuaded by them in a close case.”

“When asked a question, answer it directly. When possible start with a yes or no, but if the short answer requires a qualification to protect your client’s position, immediately follow the yes or no with that qualification.”

What is the biggest mistake oral advocates make?

“Showing nerves.”

“Being too formal. Even at the highest levels of appellate advocacy, an oral argument is closer to a conversation that an oration.”

“Starting to give an answer before thinking about what to say. Advocates often rush into answering a question, fearing two seconds of silence, and then flounder or reverse course as they reformat their answers on the fly. It’s always better to take a beat to be sure you know what you want to say before you start speaking.”

“The most serious error at oral argument is not listening carefully to the questions and thus failing to address the concerns raised by the judges.”

“Making a concession (one is almost never necessary, and you should be able to defend your ground on all levels).”

Preparation for your Argument

What is the best way to prepare for oral arguments?

“Become comfortable with the record.”

“Be able to articulate the standard of review applicable to the questions presented, and understand the appellate court’s latitude with respect to each issue. Anticipate jurisdictional questions, and know the court’s procedural options for resolving the case.”

“Think about the limiting principles that can prevent unintended consequences of ruling in your favor. The judges will likely ask questions about the impact of your requested relief on hypothetical future cases. Assuage concerns about the proverbial slippery slope.”

“Backstop your argument so that when it becomes apparent that a judge disagrees with your position about one point, you can say that even if the court doesn’t accept that premise, you should still prevail, on some narrower ground.”

“Try to put yourself in the place of the judges and think about but what questions they would ask and work on short, clear and accurate answers to all of them.”

“Research, research, research. Then think about how to explain the case and your arguments in a compelling way.”

“Rehearse, rehearse, rehearse. Practice out loud. Get comfortable with the way your argument sounds and with saying the names of the parties, cases, and statutes. Get comfortable with the language of the case, with the particulars, and it will be easy to talk about them fluidly without looking at your notes.”

What does a successful oral advocate’s outline look like?

“Short! A few key words on different points and maybe a phrase you want to repeat as theme of the case.”

“No more than two pages, with annotated points in at least size 14 font. The outline should only be there as a backup, and it should be very easy to find the information you need.”

“You won’t be able to read your notes, so include only a few, useful “trigger” words. Ideally, you should know your case so well the notes are superfluous.”

How much of an argument should be memorized?

“Memorize your introduction so that you can make eye contact with the court. Memorize the last paragraph so that your ending seems planned, rather than an afterthought.”

“Be aware of the questions you will likely be asked. Although you will not be able to actually memorize answers to these questions, you should know in advance how you plan to respond. Internalize the substance of those responses, rather than memorizing the words, so that you can shape your arguments to fit the actual questions the judges ask.”

During the Argument

What is the most effective way to use the cases or other provided material?

“Cite to the names of cases only if (1) the legal rule is disputed and you are trying to convince the court that your version of the rule is the right one or (2) you are analogizing to a case to show the court why it should rule for you.”

“Know the record very well and be prepared to answer every possible question about the facts or the proceedings below. Except in response to questions, though, oral argument is not the time to recite the facts of the case.”

“Cases are most persuasive when they directly support your point or when they are strong analogies to a point you are making.”

“Remember that arguments are short and spending too much time on citations will take away from the substance of your argument. It’s great to look knowledgeable, but it’s bad to look showy.”

“Make sure that you’re aware of what they mean and stand for and their relative chronological order.”

What should you do if you think your competitor has a misstated a fact?

“Always be respectful of your opponent. However, if he or she has misstated a material fact, be sure to correct it and to do so in a way that shows how the correct fact helps your argument.”

“You may correct them graciously. Say something like: ‘I believe my opponent misspoke when discussing this point’ or ‘I would just like to clarify a point from the record’.”

What should you do if you make a mistake?

“Don’t freak out. If it is an important point, take a deep breath, clarify your point (walk it back if possible), and don’t let the judges see you flustered.”

“Don’t try to cover up the obvious with a lame explanation or excuse. Forthrightly admit that you said something wrong. For example, when I said X I was wrong, the correct response would have been Y.”

How should you conclude?

“Short and powerful. No need for showy theatrics. In one sentence, tell the court what you want it to do and why it should do it.”

“Often, an effective ending is a “bookend” to your opening in which you pick up on a phrase or theme you used in the opening.”

“Ending shortly before your time expires leaves a great impression.”

How do you make the most of a rebuttal?

“Don’t respond to all of your opponent’s points. Just hit the biggest one or two on which his argument rests. Leave the court with sense of wanting to rule for your side and how they should do that.”

“Rebut your opponent only on important points where (1) you were hurt and (2) you have the ammunition to do something about it.”

“Think big, but narrow. Don’t go after a minute detail or slipup by the opposing side, but don’t try to overview the whole round either. Figure out what the one key issue is that the judge(s) seem to care about the most, and give a clear, straightforward reason why your side won that issue.”

What kind of feedback might a competitor want to seek from a judge?

“What can you do better? What worked well? What was convincing/unconvincing in the argument?”

“Was there an effective argument I failed to make?”

First published at https://law.duke.edu/students/orgs/mootcourt/tips/