Winning Oral Argument Tips For The Appellate Practitioner

One of the best winning oral argument tips is for the appellate practitioner to look at questions from the court as an opportunity to persuade the court and not as something to dread.  Although the questions may be challenging and the judges who ask them may be looking to hurt the advocate’s case, questions from the court are one of the best opportunities for the appellate practitioner to stand out during oral argument. This article will discuss questions from the court during oral argument and the best ways to handle this crucial element of oral argument.
 
Questions should be immediately answered and the answer should be directed at all of the members of the court, not just the judge or justice that asked the question.  An answer to a question must be followed by a smooth transition back to the oral argument.  A good appellate practitioner will make an answer seem as if it was part of the argument.  
 
Questions will be either factual or legal in nature. Factual questions will consist of either factual or procedural issues and should be answered directly.  Legal questions should be answered by blending the answer with the applicable legal authority as this will make the answer more authoritative. 
 
The most difficult question consists of a hypothetical question and whether the advocate’s arguments would lead to an unjust result under the hypothetical scenario.  This type of question will most likely be encountered at the state or United States Supreme Court level since high courts are concerned with public policy and want to know how their opinions will apply in future factual scenarios. Proper preparation for oral argument at these high courts includes preparation for questions which apply requested relief to future evolving scenarios. 

It is unlikely that such questions will be faced at the intermediate appellate court level since the applicable law is well settled and the oral argument will be limited to application of this existing law to the facts of the case.  However, if the case at the intermediate appellate court is one of first impression then the practitioner must be prepared to answer public policy questions just as if the case was argued at the supreme court level.
 
To conclude, one of the best winning oral argument tips is for the appellate practitioner to be prepared for the different questions that may be asked and to answer those questions well.  Strong answers during oral argument demonstrate preparation and competency and will gain the appellate practitioner respect from the court and from other attorneys.  On the other hand,  nothing will unmask the poorly prepared appellate practitioner like difficult questions from the court. Once the appellate practitioner develops a reputation for poor oral argument preparation then that reputation will be difficult to overcome.