KEEP THE COURT ON TRACK

An oral argument to an appellate court has many purposes. The advocate wants to present the essence of her case, rebut the essence of opposing counsel’s case, repair any problems discovered after submission of the reply brief, respond to the concerns expressed by the court, and perhaps enlarge upon the equities of the situation. However, one consideration usually should be paramount: keeping the judges on track in understanding your position.

Leading the court stepwise through the links in the chain of your argument serves three critical functions. First, it ensures that the judges understand all the logical steps you have advanced in your brief. This is your only chance to make sure there is no misunderstanding that you otherwise would first learn about upon reading the decision. Second, it structures your interaction with the bench. Instead of making a more generalized presentation which the judges may interrupt at seemingly random moments with seemingly random questions, you are guiding the judges through every essential point and implicitly inviting their questions on each issue essential to your case. Third, it puts you more in control of the proceeding, subliminally conveying an air of confidence to the court.

Of course, this does not mean an oral argument should be at all mechanical. On the contrary, the presentation should still be lively and interesting, but like any well-told story, it requires an invisible structure designed to maximize its effect on the listener.


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