Judson F. Falknor Appellate Advocacy Competition

APPELLATE ADVOCACY COMPETITION TIPS

Tips Sheet (pdf)

Caveat: These are merely observations and thoughts on oral arguments. There is no absolutely correct or incorrect way to give an oral argument, each attorney must develop their own style.  As you will find in both your practice rounds and the actual competition, evaluation of argument is highly subjective—you will be given vastly differing opinions about the “right” way to do it.  The most important thing is to find your style and develop it.  Practice often and in front of different people. Do Not Read Your Argument.  Be respectful and confident.  Finally, remember that this competition is an opportunity to become a better oral advocate; have fun.

I. Structure your argument

1. Introduction
   1. “Mr./Madame Chief Justice, may it please the court”
   2. Include your name, introduce your partner (if you’re the first person to speak for your side), and who you represent.  Consider having your partner stand when introduced. “My name is ___ and along with my co-counsel, ____, I represent the Petitioner, Mr. John Doe.”
   3. You will never represent the “government” – you are counsel for the “United States of America.”
   4. Reserve rebuttal time.  Even if you’ve already asked the bailiff to set it aside, you have to ask the court for permission to reserve time for rebuttal.
   5. Memorize your intro. 
2. Broad Roadmap
   1. What will you talk about?  What will your partner cover?  Include your general “theme” of the case.
3. Specific Roadmap
   1. List the main points you want to talk about.
   2. Try to keep your main topics to two or three… if you have too many issues, you will never cover them, and your argument will not seem as focused.
   3. What relief are you requesting from the court?
           
4. Transitions
   1. When you move between points, feel free to say something like “and now, turning to my second point” to emphasize the fact that you’ve moved on.
   2. Don’t get upset when a judge pulls you away from your agenda – you are there to answer their questions.  Never tell a judge “I will get to that later.”  Answer the question and then smoothly transition back into your argument.
   3. Be prepared to make your entire argument without a question.  It will likely never happen, but be prepared.
              
5. Conclusion
   1. Always give yourself at least 30 seconds to briefly conclude your presentation.  This is a good time to remind the court of the relief requested, as well
   2. Memorize a conclusion.

II.    Theories on rebuttal

1. Rebuttal is the best place to score points against your opponent, but also the best place for you to screw-up your argument.  Long rebuttals invite new questions and will derail your purpose.  A good rebuttal will be focused, brief, point out the failings of your opponent’s argument, but not merely rehash your original presentation.  Rebuttal should be responsive; a superior rebuttal will focus on a question asked of your opponent and use it to their disadvantage.
2. The person giving rebuttal should be prepared to discuss both issues of the case.

III. General Thoughts on Oral Argument

1. Answer the questions. This is the most important purpose of oral argument.  If you can, give them a yes or no answer, and then your rationale.  If you reserve this order, you will be seen as avoiding the issue and will have points deducted for being “non-responsive to questions.”
2. Engage the Panel. Remember, you do not really argue against your opponent, but are really looking for a good dialogue with your panel of judges.  Do not be too wedded to your prepared script, but instead be ready to discuss the issues that the judges raise.
3. Respondents Respond. A good respondent’s argument is truly responsive to the presentation of the petitioner.  Make sure you listen to their presentation and tailor your oral argument to match.  This is not to say that you have to follow their organization – jut make sure you draw parallels to their points when you make yours.
4. Be Prepared.  You will be amazed at the many tangents that oral argument will take.  To the extent possible, you should be ready to discuss everything remotely related to your issue.  You should also have a basic understanding of your partner’s issue since you may get questions on it as well.  In that case, a superior response is “Well, that issue will be raised by my partner, but the answer is likely….”  Use your preparation time and practice rounds to expand your understanding and knowledge of the issues.
5. Argue Policy.  Issues get to appellate courts because the law is in flux.  A strong and logical policy justification behind a point is more persuasive than a whole bunch of illogical District Court opinions.  To that effect, do not merely cite to lower court precedent, but be familiar with the reasoning behind the decisions and be able to distinguish or draw parallels to that reasoning. 
6. Distinguish Facts.  If a case is not favorable, make it seem so distinctly different from the issue presented that it is hardly relevant.  Know the facts of cases and be prepared to show why they don’t apply.  Few things impress a judge like detailed knowledge of a case that they raise.
7. Beware the Hypothetical.  Judges love to ask about hypothetical scenarios and will throw them at you all the time.  Always look to the long-term ramifications of the scenario presented; minor concessions may trap you later in your argument.  Distinguish these from the facts of your case. 
8. If You Don’t Know, Admit It. Don’t be afraid to admit to not knowing something.  But, be prepared to make your best guess based on your understanding of the hypothetical case presented by the judge.  Some people respond with “I’d be happy to brief that issue and get back to you,” but this can be considered non-responsive.
9. Be Willing to Concede. Nothing undermines your credibility more than a staunch defense of an illogical point.  Concede weak points, and be willing to admit that yours isn’t the best case, your client isn’t the best person, etc.  However, don’t concede something that will hurt you in the long-run. 
10. Eliminate Personal Pronouns.  Never say “I believe,” “I think,” etc.  If you would like to argue something, just do it and don’t weaken the point by qualifying it.
11. Don’t Be Afraid of Silence.  If you’re thinking about a question, look thoughtful, take a moment, and then respond.  You don’t get points for shooting off answers as fast as possible, and a moment of careful consideration will both flatter a judge (because their question is obviously the most difficult you’ve encountered), and give you a moment to figure out where the line of questioning is going.
12. Never Interrupt a Judge.  Let them finish their question before even opening your mouth.  Period. 
13. Teach the Judges.  You know the issues and facts better than they do.  Use your time to educate them, not merely pontificate what you think the result should be.  Lead them to conclusions by demonstrating the logical foundations of your arguments.

Relax.  Oral argument is fun (or should be) and a chance to discuss an issue you have lived with for a very long time.