Oral Advocacy

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Usually oral advocacy is a stage in the appellate level that focuses on the presentation of an attorney's legal briefs. Getting to the appellate level means that the lawyers have already received a decision from a trial judge, and that one of the parties decided to contest (or appeal) that decision. At the appellate level, attorneys usually draft a persuasive legal brief (i.e. their pleadings). In addition to the briefs, however, lawyers normally have the opportunity to orally present their arguments to the judge.

General Principles of Oral Arguments [1]

  • Practice makes perfect- Practice. Speak consistently, at a moderate speed. Keep your volume and tone at a conversational level in order to engage the judges properly. Speak clearly and distinctly and avoid using filler words such as “um” or “er.”
  • Be able to give a concise answer as to the court's jurisdiction- Make sure that you are able to quickly and succinctly articulate why the court you are arguing in front of has jurisdiction. While other issues or conflicts in the substance of your argument can be waived, the court can never waive jurisdiction if it did not have it in the first place.
  • Know your audience- If you know the identity of the judge who will preside over your trial, it is a good idea to obtain an understanding of the way she or he works. Read their previous opinions, articles, and/or speeches to try and gauge the judge’s judicial philosophy. In addition to learning about a judge’s judicial philosophy, try to learn how the judge runs her courtroom, pick up on her idiosyncrasies. It also may be advisable to learn about a judge’s personal history. All this information will help you feel more relaxed about the oral argument and humanize the judge. Moreover, make sure you know (and become comfortable with) the correct pronunciations of case names, legal references, party names, and general vocabulary of the court (for example- judges in US courts are addressed as “your honors” whereas judges at the international Court of Justice are addressed as “your excellencies”).
  • Know your case inside and out- Be sure that you are very familiar with the case law, statutes, and facts of the case. Avoid going too in-depth in the precedent discussions. Oral arguments are time constrained, it is often best just to state the holding and then go into the detail of the case only if the judge asks about it. Furthermore, sometimes lawyers become so entangled in the cases and statutes that they forget about the facts in the cases. The facts, however, are extremely important because in-depth knowledge will allow you to analogize or distinguish to any case law that the opposition raises. Also, be flexible in your oral argument. In many jurisdictions, it is the judge, not the lawyer, who leads the arguments. Sometimes a judge will ask a question that will take you off of your oral argument outline. If this happens, address the question as completely and succinctly as possible and then segue back into your original structure. Also, be absolutely clear about the relief that you are seeking.
  • Know your opposition’s case- You should take into account the points the other side will likely make and have a clear idea of which arguments can be accepted and which arguments must be countered on the merits. If you are the first to present in oral arguments, it is best to distinguish between significant points that must be addressed in your opening arguments and which points may be addressed during rebuttal.
  • State the main issue first- Always start with a statement of the main issues before launching into the facts of a case. The judge will most likely want to hear about the main point of a case first rather than a complicated recitation of the fact pattern.
  • Priority of arguments- If the time allotted is short, decide in advance which parts of the brief will be covered- it is best to address the strongest/most important points in-depth and note to the court that the oral argument will be limited in this manner.
  • Be clear about the theory of the argument- In common law jurisdictions, the way a judge decides a case will be a precedent for future cases. Therefore, as an attorney, you should understand the future implications on case law if the court decides in your favor. Be ready to answer any hypotheticals that the judge may pose. You must be able to articulate the logical consequences of your case theory and address or mitigate any problems that might arise from it.
  • Outline and Organize- Try to write an outline from your motion or brief of the main points that you want to make in the oral argument. It is also a good idea to organize your notes and your outline in a format that is easy to manipulate the day of the argument.
  • Never read from your notes- Memorize as much of your argument as possible. Even if you cannot memorize your entire argument, memorize the opening so you do not have to worry about blanking out when you first get to the podium.
  • Be conversational with the judge but not too casual- Be respectful, but not excessively deferential. It is also a good idea to make eye contact with the judges- oral arguments should be looked at as a conversation between the judge and the attorney. Never speak over a judge and stop promptly when your time is up.
  • Dress to Impress- Dress appropriately for the oral argument and carry yourself in a business-like manner.
  • Responding to Questions- Listen carefully to the questions and ask for clarification if you are not sure what was asked. If you end up answering a question that was not asked, you’ll have wasted both your time and the court’s time. Do not postpone answering a question that a judge asks (i.e. do not say “I’ll get to that later”). Try to begin your response with a “yes,” “no.” or “maybe.” After giving this type of direct response to the judge’s question, you may then launch into your explanation. If you are unsure of an answer, admit this to the court and say that you will get them the information as soon as you can.


  1. All of the information can be found in Making Your Case: the Art of Persuading Judges, Antonin Scalia and Bryan A. Garner (1st ed. 2008) and Adversarial Legal Writing and Oral Argument, Michael D. Murray and Christy H. DeSanctis (1st ed. 2006).