Winning Oral Argument Enduring Principles with Supporting Comments from the Literature

ISBN-10: 0314198857

ISBN-13: 9780314198853

Edition: 2009

Authors: Bryan A. Garner

List price: $71.00
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In this eminently browsable book, Bryan A. Garner has collected and arranged the most important, interesting, and penetrating statements from judges and lawyers about how to conduct an oral argument. Each didactic principle is stated, briefly explained, and then illustrated with quotations from a dazzling array of sources, ancient and modern. Novices and veterans alike will find helpful advice in these pages, which systematically explain the subtleties of the art more lucidly than any previous work has done.
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Book details

List price: $71.00
Copyright year: 2009
Publisher: West Academic
Publication date: 4/22/2009
Binding: Paperback
Pages: 278
Size: 5.75" wide x 8.75" long x 0.50" tall
Weight: 0.836
Language: English

Bryan A. Garner is president of LawProse, Inc., and Distinguished Research Professor of Law at Southern Methodist University. The editor-in-chief of Black's Law Dictionary, Garner is the author of several best-selling books, including Garner's Modern American Usage and, with Justice Antonin Scalia, Reading Law: The Interpretation of Legal Texts and Making Your Case: The Art of Persuading Judges.

Table of Contents
The Importance of Oral Argument
The Purpose of Oral Advocacy
The Quality of Modern Oral Argument
Preparing Yourself Generally as a Public Speaker
Develop a clear, strong, pleasant voice.
Consciously lower the range of your pitch.
Purge your speech of "ums," "ers," and "ahs."
Master the preferred pronunciations of English words, legal terms, and proper names-certainly all the ones that might arise in a given argument.
Speak with deliberation and force. Avoid speaking too fast, too loudly, or too quietly.
Learn the value of pausing occasionally, at appropriate points.
Express facts in plain words-and in chronological order.
Treasure simplicity in presenting your arguments.
Learn to drill straight to the core of a problem. Develop a knack for summarizing. Don't get bogged down in minutiae.
Master the art of allowing ideas to unfold logically in the listener's mind.
Know what a peroration is-it's the concluding part of a speech-and master its use.
Preparing for Oral Argument
Prepare, prepare, prepare.
Know your record from cover to cover, and stay within it.
Know all you can about the judges or justices-their names, their past opinions, and whatever else you can possibly learn.
Limit the material you'll try to cover.
Formulate the rule for which your case stands-and be willing to show how the rule would apply by analogy to other cases.
Know the salient facts that invoke the relevant rule that disposes of the case.
Be prepared to say, "This Court should [rule in a certain way] for three reasons."
Develop memorable phrasings-even sound bites-for the issues in your case.
Avoid splitting the argument between cocounsel.
Ensure that the lawyer most intimately familiar with the case, and its appellate posture, argues the case.
Prepare three arguments: (1) a full argument that takes about 20% less than the full time allotted, (2) an intermediate version that allows for some questions from the bench, and (3) a short-form version that allows for an extremely active bench.
Know the cases you've cited in your brief-and the ones your opponent has cited.
Do some last-minute research to ensure the soundness of your authorities before oral argument.
Know precisely how you want the mandate to read.
Anticipate questions as best you can.
If you represent the appellee or respondent, prepare for the unusual but growing possibility that you might be the first to argue.
Practice your argument out loud, preferably in a moot court.
Practice stating the facts of your case to nonlawyers.
In the weeks preceding your argument, watch another argument or two in the very court where you'll be arguing.
Arrive at court plenty early.
The Manner of Your Argument
Carry yourself as if you know what you're doing and have done it before.
Make a good first impression before you utter a word. Be presentable. Hydrate beforehand.
Have the relevant papers in order, and organize them for ready reference.
Unless local custom is to the contrary, always stand when addressing the bench.
When speaking, position yourself: avoid swaying and shifting and other annoying habits, such as gesturing with your pen.
Look directly at the judges individually-in the eye, not up into space. Connect with your audience.
Always remain cool, calm, and temperate-never agitated and never smug. Listen to opposing counsel with courtesy and respect, without any gesturing or head-shaking.
Never read an argument. Remember that your delivery must sound natural. Memorize only the preferred sequence of your ideas, and approach the lectern with no more than a few outlined points.
Avoid the rhetorical, table-pounding orations of jury trials.
Be conversational but not familiar.
Use correct courtroom terminology. On the federal level, trial and circuit judges are "judges"; only members of the U.S. Supreme Court are "justices."
Avoid the first-person singular (I, me) and such constructions as "Appellant contends that ...," "It is our position that ...," and the like.
Use demonstrative aids if they're helpful, but make them easy to see and understand from a distance of 30 feet or so.
The Matter of Your Argument
Start with "May it please the Court."
Have your opener down pat-and make every word count. Identify yourself, briefly present the question for decision, and state your position.
Begin with an overview so that you can signpost your argument.
If you're an appellant before a "cold" bench, briefly explain the history of the case and the key facts before stating the controlling law and how the lower court erred. If you're the appellee, decide whether you must restate the case in some respect.
If you're before a "hot" bench, go straight to the most important deep issue.
If you represent the appellee or respondent, don't rehash the facts. But correct any salient errors or omissions in the appellant's or petitioner's statement.
If the issue involves statutory or contractual language, focus quickly and concretely on the words at issue.
Never engage in detailed dissection of caselaw.
Never bring a triviality to the court's attention.
Never tell a joke. Avoid contrived humor. But if you're extraordinarily adept, allow spontaneous good humor to surface as long as it's at no one else's expense.
If the court clearly shows how it will rule on a point, move to another. Don't dwell any further on that one.
Face up to your weak points, but then say why they're not controlling.
If you have an unanswerable point that is fatal to your opponent's case, consider closing your argument by suggesting to the court that your opponent should answer it.
Never ask how much time you still have on the clock.
Even if you still have time, stop when you're finished. If the judges have no further questions, sit down.
Stop when you're out of time, taking no more than a few seconds to finish your sentence.
If time permits, close by saying, "Thank you." Then pause briefly. Don't rush from the lectern.
Responding to the Bench
Rejoice at questions. Accept that you may have no chance to speak other than in answer to questions.
Never talk at the same time as a judge. Yield the floor.
Listen carefully to every question-just as you would advise a deponent to do.
If you speak second, listen closely to what the judges say in questioning your opponent.
Willingly answer hypotheticals.
Answer questions directly at the outset, with a yes or no, or perhaps "Yes, with two qualifications" or "No, Your Honor, but the point has some subtleties."
After your prompt response, explain your answer more fully if necessary. Never postpone an answer until you've explained something else.
If you don't understand a question, say so with due modesty.
If you don't know the answer to a question, say so and offer to submit a supplemental brief on the point.
After answering, transition back into your argument smoothly. Look for opportunities to use the answer as a segue to your next important point.
Be sensitive to the judges' body language.
Recognize friendly questions for what they are.
If the judge is downright hostile and expresses a clear indication that you're wrong, consider an appeal to humility. But you can't be hostile in return: be firm and confident and friendly.
Avoid overtly taking issue with the judge.
Stand firm when you need to. Know what you can and can't concede.
Never ask whether you've adequately answered a question-and never pose any other substantive question to the bench except to elicit clarification of a judge's question.
Never waive rebuttal beforehand.
Take notes for rebuttal, and then refute the more important points with rifle shots.
Rebut only as necessary, and stick to major points.
Waive rebuttal if your opponent hasn't scored any points.
Final Thoughts
Remember the importance of continual improvement.
Bibliography of Works Cited
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