A young attorney's first oral argument is a momentous milestone in his or her legal career. As exciting as this experience may be, new attorneys should also appreciate the importance of oral argument and understand that it may have a lasting impact on the outcome of the case. While no lawyer is perfect (especially in the first few years of practice), there are certain standards that any well-respected attorney is expected to meet in order to make a good first impression in the courtroom and to demonstrate effective oral advocacy. New attorneys can achieve these standards too; whether that attorney has had months, weeks or just days to prepare for their day in court. Below is a list of some helpful tips that all young attorneys should consider before their first oral argument.
• Study and outline the record.
The most essential element of effective oral advocacy is having a working knowledge of the facts and the law of your case. Analyze the relevant pleadings, motions and exhibits filed by both parties, as well as any other relevant information, until you can expertly address all of the facts and the issues at hand. The more prepared you are to argue your client's case, the better you will feel. Next, draft an outline that contains the following: a concise introduction, subheadings for each legal argument that matches your legal brief(s), key phrases, statutes or case names that remind you of your strongest arguments, and a list of points to be summarized in your closing statements. This outline should be used as a tool to keep you focused during oral argument, but never as script to be read verbatim or memorized.
• Anticipate the opposition and prepare responses in advance.
By this point, you should know your opponents' position on the pertinent legal issues. Use their moving papers to plan ahead and anticipate opposing arguments, as well as questions you might encounter from the bench. For instance, if opposing counsel uses two specific cases to support a particular legal position, you should thoroughly research those cases and be ready to distinguish the facts or circumstances of your own case, in order to undermine their position. Additionally, be prepared to concede a minor weakness in your own case, but then counter that point by highlighting the strengths of your position. This will not only enhance your credibility before the court, but it will also prevent you from drawing attention to information that is potentially harmful to your position.
• Provide direct and concise responses to the court.
First, young attorneys should understand that every judge has a unique style and set of preferences during oral argument. Some judges allow the attorneys to speak at length, uninterrupted, while other judges prefer to control the hearing by asking direct and pointed questions on a particular set of issues. Utilizing the first two tips above will certainly prepare new lawyers for the former scenario, but they must also be equipped to handle the latter. When responding to a question posed by the court, you should first confirm or deny the statement, then provide a more substantive explanation. To illustrate, if a judge asks whether a particular legal standard applies to the case at hand, the attorney should respond, "Yes, Your Honor," or "No, Your Honor," and follow with "The X standard does/does not apply because ..." Employing this simple formula will allow you to demonstrate that you understand the judge's question, that you are able to address the court's inquiry, and that you have a clear position on the matter.
• Show respect and professionalism to everyone in the courtroom.
As Desmond Tutu famously said, "Don't raise your voice, improve your argument." This principle seems simple enough, however many attorneys lose sight of this notion the second that their theories are challenged. An attorney who speaks in a calm, clear, and professional manner will always appear more confident and credible than an attorney who shouts or demonstrates other immature behavior. Never, ever, raise your voice at a judge, or interrupt a judge while he or she is speaking. Also, do not pose any questions to the bench, unless you need to clarify a particular question. On balance, you should not be afraid to zealously advocate for their clients, or to speak passionately about their position. Exuding confidence in your tone and demeanor is nearly just as important as the substance and knowledge behind the presentation.
• Practice, practice, and then practice some more.
You can never be too prepared for oral argument. Time permitting, new attorneys should practice their introductions, arguments and closing statements before colleagues, or even out loud to themselves, before appearing in court. Practice and repetition not only builds confidence and calms nerves, but it will allow the attorney to obtain feedback about the substance of their arguments, and identify undetected strengths or weaknesses. Attorneys who practice public speaking and who seek feedback from more seasoned attorneys, are likely to develop strong oral advocacy skills that will benefit their careers in the future.
• Do not forget about logistics.
Young lawyers should take the time to consider the importance of the logistical aspects of their first court appearance. They should arrive to court at least 15 minutes before their scheduled appearance, and bring extra copies of all moving papers and exhibits, as well as plenty of office supplies. An attorney who shows up late, or who becomes frazzled because he or she forgot a legal pad, will be distracted from the task at hand. Equally important, the attorney should be well-rested and should turn off all distractions before entering the courtroom, including his or her cellphone. These straightforward steps can help attorneys reduce stress and increase their likelihood of making a good first impression in the courtroom. •
Lisa M. Koblin of Obermayer Rebmann Maxwell & Hippel focuses her practice on employment and labor law litigation, defending clients in suits involving allegations of discrimination, retaliation, harassment, hostile work environment, common-law tort claims and allegations of procedural or substantive due process violations.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Reprinted with permission from the June 22, 2017 edition of THE LEGAL INTELLIGENCER © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com. # 201-06-17-11