This past summer I had the amazing opportunity to intern with the United States Court of Appeals for the Seventh Circuit (thank you, Professor Hammer, for organizing such a rewarding internship program). I would highly recommend this internship to anyone. For me, the internship was truly a once in a lifetime experience since, as many of you may know, I am a major moot court nerd. While interning at the Seventh Circuit, I observed upwards of seventy oral arguments, including a rehearing en banc, a Foreign Intelligence Surveillance Act case, and a death penalty case. During these arguments, I would take notes on attorney conduct, questions from the judges, and the overall atmosphere of the courtroom. I would like to share with you the top five oral arguments tips I learned while at the Seventh Circuit.
(1) Answer the Judge’s Question Directly
Questions are a gift because they allow you to know exactly what is bothering the judge. Too often, people see questions as an interruption or a nuisance and, thus, fail to take full advantage of the opportunity the question presents. I cannot tell you how many times I heard the phrase, “You’re not answering my question,” and the follow-up phrase, “It’s a simple yes or no answer.” The best way to handle questions is to answer directly—preferably with a yes or no when appropriate—and then say, “Let me explain.” This answers the judge’s question and also signals that further explanation is necessary. When you dodge a judge’s question, you lose credibility and frustrate the judge.
(2) Have a Conversation with the Judge(s)
This is a difficult concept to explain. Rather than lead you through a convoluted explanation, I will simply provide you with an example of a fantastic oral argument from this summer. Listen to the appellant by clicking here.
(3) Think About the Scope of Your Rule
Most of the questions I heard this summer focused on how the rule being advocated for would apply to different hypothetical scenarios. If you think about the scope of your rule prior to your argument, you will be better prepared to handle any set of hypothetical facts a judge presents during your argument. Remember that your rule must be reasonable. No judge wants to adopt a rule that has an outrageous effect. For example, in Klinger v. Conan Doyle Estates, the appellant did not clearly articulate the scope of the rule he was advocating for. As a result, Judge Richard Posner asked, “You’d like to destroy the public domain?” The appellant could have avoided this question entirely if he had thought about a clearly articulable rule. I suggest listening to the appellant’s argument so you can see for yourself how confusing it can be when you do not define the scope of your rule.
(4) When Using Cases, Explain Your Reasoning
Do not simply cite to a case when giving your oral argument. If you are introducing a case, explain the reasoning behind the case. Explaining the case includes stating why the case either supports your reasoning or is distinguishable from your case.
(5) Capitalize on Rebuttal
Rebuttal is your opportunity to respond to (1) what is bothering the judges and (2) what opposing counsel stated. Use this opportunity wisely. Too many people waste their rebuttal time by simply walking through the points of their arguments again. The best rebuttals answer a question the judge directed at opposing counsel or respond directly to something opposing counsel stated. My personal favorite is answering a question the judge posed to the other party because it lets the judge know that you are paying attention and hits on a point that the judge feels is an important factor in deciding the outcome of the case. You can do this by simply stating, “Your honors, in response to the hypothetical you gave Petitioner . . . .” If you have nothing to respond to, then it is best not to waste the court’s time. Many attorneys this summer chose to rest on their briefs and on their primary argument rather than give a poor rebuttal.
On a side note, I highly recommend downloading the Practitioner’s Handbook for Appeals. You can find it on the Seventh Circuit’s webpage. It is full of wonderful information.
Please feel free to share any tips you have for oral arguments. Good luck to all the Appellate Writing and Advocacy students who are currently preparing for their oral arguments!