Oral Argument Tips Outline

I. ORAL ARGUMENT TIPS

A. General structure: start with a "roadmap" that sets out the areas that you will
discuss; then move onto your main argument [2 parts, usually]; then finish with a
conclusion.

B. Roadmap: Always keep in mind that is should be about one to one-and-a-half

minutes. Here's a quick summary.
1. Begin with your introduction: "Good [morning/afternoon/evening]. Your
Honors, [Mister/Madam] Chief Justice, and may it please the court. My
name is _________, and I,[ together with my co-counsel ______,]
represent the [Petitioner/Respondent], ________. [At this time I would
like to reserve two minutes [of my/my co-counsel's time] for rebuttal.
(Only say this if you are the first Petitioner; whether you reserve from
your time or your co-counsel's time depends on which of you is doing the
rebuttal)]"
2. Next move into a theme-oriented introduction sentence. This needs to
only be one sentence, although it can be a longer sentence. The key is that
is should be somewhat punchy and grab the panel's attention. Do not start
the theme statement with "This case is about ...." Something like: "The
voice of the 49 states that have enacted laws protecting journalists from
revealing confidential sources should weigh heavily in this court's
determination of whether or not to ensure the public's right to valuable
reporting." I'm not saying you should use this exact phrasing, but this is
the tenor you should be going for.
3. Next move to your bullet-point intro: "This Court should affirm the
ruling of the Fourteenth Circuit for the following two [or three, if
necessary] reasons: ..."
4. Next move into your bullet points. Keep them short. For instance, "First,
this Court in Branzburg correctly held that the importance of criminal
proceedings outweighs to value of confidential sources. Second, …" The
main purpose is to give the justices an idea of the outline of your argument
so that they can follow where you are at any given point. I tend to think
most problems are built so each “issue” has two broad points that can be
discussed.

C. [Fact Packet.] The Petitioner, first issue, should do a “fact packet.” The
Petitioner, second issue, should do a smaller fact packet that focuses on their
issue. The Respondents should only do a fact packet if the petitioners have
blatantly mischaracterized the facts, or there is some specific disagreement that is
relevant and helpful for bringing the judges over to your side. Otherwise, the
facts will mostly have been fleshed out on the Petitioners’ side and should not
need to be discussed again. Instead, consider live-rebuttal.
 1. A Fact Packet introduces the 2-3 main facts that are necessary to inform
the judges of what is needed to understand the issue. This is also a great
way to “build” record cites into your argument, which helps score points.
2. Speak very slowly and clearly; judges are often unfamiliar with the facts
because they have only read a “bench memo” briefly immediately before
entering the round.
3. Some judges may know the facts and ask you to skip straight to your
argument; that is ok. If a judge does this, be sure not to appear flustered.
Simply say, “Yes, your honor,” and transition to your first point.

D. Questions from the justices: The main purpose of the oral arguments is to allow
the justices to ask any questions that they might have.
1. Once a justice asks a question, your presentation must immediately stop
and you must focus your attention on answering the question. After
you've answered the question, fully but precisely, you will transition back
to your argument.
2. Whenever appropriate, 1) respond to a question with "Yes" or "No," 2)
provide a brief explanation as to why; and 3) provide a citation for your
discussion.

E. Deference to the justices: You must be deferential to the justices. Do not show
any signs of disrespect or condescension. It is permissible (and ideal) to laugh
(once or twice) and generally be human, but keep a tight rein on breaking
character and refrain from anything flippant.

F. Packages: During preparation, you will want to focus on memorizing responses

to probable questions. For instance, the Petitioner will most likely be asked: "Is
Risen really a journalist here?" This is the type of question you want to develop a
canned or packaged answer for.
1. Every answer to a judge’s question should try to follow this format:
1. Give an ANSWER (Yes or No!)
2. Give the rationale for your answer (one sentence, max),
3. Cite a source for your rationale (“as the court in _____ acknowledged).
2. Try to discuss a case in 3-4 sentences that cover:
1. Summary of Case
2. What happened (the facts)
3. The holding of the case, and
4. How that holding applies here.
5.
G. Eye contact: Do not look down at your notes unless you absolutely have to. Eye
contact engages the justices. In addition, be sure to "spread the love" when it
comes to eye contact; meaning, don't just focus on one justice or the justice who
asked the question, look around to all the justices.

H. Slow, measured delivery: Talking too fast is a recurring oral argument problem.
This problem has a few facets.
 1. First, it is easy to simply speak too fast when you are excited or nervous.
If you have problems with this you may want to select certain signposts to
remind you to slow down. For instance, you might want to train yourself
to think about speed whenever you see a time card, or whenever a question
is asked, or whenever you transition points. Whatever works for you.
2. Second, an overly speedy delivery can often result in a pre-emptive
response that cuts off the justices. This is bad. Do not interrupt the
justices. Make sure the justice has completed his or her question before
you answer. You should be taking a breath and organizing your answer in
your head before answering anyway, so interrupting the judge should not
be a problem.

I. Avoiding Verbal Ticks and Superfluous Verbiage:

1. The most prominent verbal tick is "um". It is very difficult to eradicate,
but the best strategy is to avoid saying "um" by replacing all "ums" with
pauses. Easier said than done. Colloquial misuse of the word "like" (as in
"Sterling is, like, innocent") is strictly forbidden.
2. The most prevalent use of superfluous verbiage is the family of
personalized lead-ins: "I think", "I argue", "We would argue", "Petitioner
would argue" (if you are Petitioner), etc. All of these are 100%
unnecessary and can be avoided by simply not saying them and beginning
with the substance of whatever you are trying to say. Generally, taking a
pause helps to eliminate these sayings, which tend to serve as time filler
while you think about what to say. A pause is always the best time filler.
3. Avoiding superfluous verbiage does not include the use of transition
statements. Where possible, use transition statements or sign posts to
indicate where you are in your argument. An example would be “Turning
to my first point,” or “By way of background, a few facts are necessary to
guide this court’s analysis…”

J. Dealing with belligerent questioning: Sometimes a judge may find a certain

argument unpersuasive and rain down on you with questions in an attempt to get
you to concede an issue. Your strategy will depend on if the issue is one that you
can concede.
1. If you can concede the issue, make two attempts to answer a tough
question and then point out that even if the court finds against you on this
one, you still win.
2. If you cannot concede an issue because you would lose, instead try:
1. State the rule again
2. Throw out an additional case
3. Bring in policy
3. Sometimes you might try refocusing the justices to get them to back off a
nuanced point. For example, “In order to understand this, it’s helpful to
take a step back and focus on _______.”
 If none of this works, make your strongest argument, then transition quickly to
your next point, connecting one point to the next to make it harder for the
justices to interrupt you.

K. Time Management: The Scylla and Charybdis of time management are: running
out of time, and running out of material too early.
1. As to the latter, I would define "too early" as ending with more than two
minutes left. Some ideas for additional material if you feel like you are
out of things to say: rebutting more of your opponents' arguments
("Petitioner argues", "Respondent may argue"); going into policy
considerations; or revisiting a previous question that you may not have
answering satisfactorily. Do not ask the justices whether they have
additional questions.
2. As to the former, be sure to plan when you will move onto certain issues.
There are many strategies for getting the panel to follow you onto a new
issue. However, you do not want to move abruptly. Instead, conclude
whatever point you are making and deploy a transition.
L. Concluding:
1. Asking for more time.
a. If are not answering any questions in the last minute of your
argument, there is no reason why you should go overtime.
Therefore, in this scenario, try your best to conclude in time.
b. If you are in the process of answering a question when the STOP
card is raised, say: "Your Honor, I see my time has elapsed may I
briefly finish answering Your Honor's question?" The rule of
thumb is that if you can finish your point by finishing your
sentence, do so, say thank you, and sit down; If you cannot, then
ask for time, give one more sentence (two at the most), and then
say thank you and sit down.
c. If you have been answering a question during the last 30 seconds
of your argument, it is acceptable to ask for time to conclude.
However, be as brief as possible.
2. Pre-prepared conclusions.
a. You should memorize a one-minute conclusion, a 30 second
conclusion, and a one sentence conclusion – to be used depending
on how much time you have left to conclude.
b. In general, awkwardly tacking "therefore this court should affirm"
at the end of your last sentence is not an effective way to conclude.
2. Ending.
a. Your most important impression is made in the first 10 seconds.
Your second-most important impression is made in your last 10
seconds. Even if you had a really hot panel, or the judges were
aggressive, or you do not feel you did well, wipe all that away.
Give the impression you did exactly what you intended to do.
b. To give that impression, do the following when you end:
1. Remain Calm
 2. Smile,
3. Say “Thank you,”
4. Collect your materials and sit.

M. There are three types of rebuttal: preemptive rebuttal, live rebuttal, and regular
rebuttal.
1. If you have copies of opponents’ briefs, then as the Petitioner, you may
want to preemptively rebut some of the Respondent's likely arguments.
2. Respondents do not get a separate rebuttal. Therefore, it is important to
try to do what's called "live-rebuttal". This involves saying "Petitioner has
argued _____, however ______" or something of that nature (“Petitioner
errs…”; “Petitioner mischaracterizes the holding in….”). This allows you
to directly address the oral arguments that your opponent has made.
3. Petitioner's formal rebuttal is an art. Here are a few tips:
a. Make a list of two or three points that you want to make on rebuttal
before you return to the podium. You can take this list with you to
the podium.
b. Collaborate with you partner so that at least one of your points
deals with your partner's issue. It is okay to make notes to each
other during the round, provided the note taking does not been
excessive and you have retained composure (professionalism)
while the other team performs.
b. Do not make more than three points. Two is the ideal number of
points to make on rebuttal.
c. There are two approaches to this, depending on which of you
performs the rebuttal (the first issue or second issue):
1. Your first point is for your issue, and your second (and third if
you have time is for your partner’s issue).
a. Your rebuttal should address both issues. If you try to
make two points on your issue, you will be almost
guaranteed to not have time to address your partner’s
issue in a third point. And judges die and are reborn
when you can talk confidently about your partner’s
issue.
2. Your first point addresses the most recent issue discussed (i.e.,
the respondent’s second issue), and then you discuss the first
issue.
a. This may seem more natural, because it’s easier to
transition to a discussion about what was just discussed.
However, it is harder to do (especially if the person for
the first issue is doing the rebuttal), and the judges may
be “worked up” enough that you cannot easily
transition to the first issue.
d. Begin the rebuttal with "A few points on rebuttal".
e. It is crucial that your rebuttal points are short, concise, and point
out clear, precise errors in your opponent's argument. Do not use
 rebuttal to raise broad legal arguments. You do not want to draw
questions from the judge on rebuttal. That is why raising short,
clear legal errors is usually the best strategy.
f. If you do not get a question during rebuttal, then you must not
exceed two minutes and should not ask for more time. If you do
get a question, it is okay to ask for more time – but only to answer
that question.

N. Materials. For your official arguments at competition, I would highly

recommend that you have as little notes as possible. At most, I would
recommend a folder with a page of notes taped to each side. Nothing more.
So at most, that is two pages, one-sided.
1. Notes can be helpful if you need help referencing page cites of a case, or
want to use a quote persuasively, but other than instances that need very
specific and exact references, they are usually a crutch that impairs you
during competition.
2. If you do bring notes, look down at them as little as possible.

O. Practicing. Lots of progress can be made during the last weeks. Keep
working on your arguments. Be sure to practice in front of friends, family,
and mirrors as much as possible.