Common Federal Appeal Oral Argument Mistakes

Common Federal Appeal Oral Argument Mistakes

When preparing for oral argument in a federal appeal, it’s important to avoid some common mistakes that can undermine your case. Here are some of the top mistakes to watch out for and how to prevent them:

Treating It Like a Jury Argument

One of the most common mistakes is approaching oral argument like a closing statement to a jury. Remember, you are speaking to judges who have already read the briefs and are familiar with the case record. Don’t waste time repeating arguments from your brief or walking through background facts – focus on directly answering the judges’ questions and addressing any concerns they raise.

Sticking to a Script

While preparation is important, rigidly sticking to a predetermined script or outline is another misstep. Be ready to think on your feet and adapt your argument to respond directly to the judges’ questions and concerns. Don’t be afraid to go “off script” if it’s needed to clarify a point – just make sure to bring it back to your key themes.

Introducing New Facts or Arguments

In general, don’t bring up new facts, case law precedents, or arguments that were not already covered in your briefs. The purpose of oral argument is to expand on what has already been presented to the court in writing. Introducing new material unexpectedly can irritate judges and even lead to waiving arguments.

Inadequate Answers to Questions

When judges ask questions, answer them directly and fully. Short, evasive answers that don’t really address the intent of the question will only lead to more questions and create a negative impression. If you need more time to formulate an answer, ask for a moment to collect your thoughts.

Forgetting to Make Your “Ask”

In the back-and-forth of oral argument, don’t forget to clearly state the specific relief or outcome you are asking the court for. Tell the judges explicitly what you want them to do, whether it’s reversing a decision, remanding on certain issues, etc. They want to know what your “ask” is.

Poor Demeanor and Body Language

Your demeanor and body language can influence how receptive judges are to your argument. Avoid nervous tics or gestures and practice speaking slowly, calmly and deliberately. Make steady eye contact to show confidence in your positions. And of course, be scrupulously polite and professional with the judges at all times.

Sloppy Rebuttals

When it’s your turn for rebuttal, use it strategically to respond to your opponent’s key points or recent questions from the judges – don’t just rehash your opening. Prepare potential rebuttal points in advance to cover likely arguments. Stay nimble enough to bring in new rebuttals as needed based on how the argument progresses.

Forgetting Case Details

Make sure to thoroughly re-read your briefs, the record and all cited cases before the argument. You need to have the details at your fingertips. Fumbling over the facts of a cited precedent or forgetting a detail in your procedural history can hurt credibility.

No Clear Theme

Without a clear overarching theme or narrative tying your positions together, oral argument can come across as disorganized or unclear. Outline two to three key themes in advance and connect your responses back to them consistently. This gives your audience a framework to understand your arguments.

Failure to Prioritize Arguments

You only have a limited time – don’t dilute your time by giving all arguments equal weight. Make strategic choices about one or two absolutely key points you must get across, and spend the majority of time hitting those rather than rattling through superficial treatment of too many tertiary arguments.

Forgetting Case Implications

Judges are interested not just in the outcome of the instant case, but the broader implications their ruling will have for other cases down the road. Be ready to directly address questions about potential consequences, future interpretative issues, and impacts on similarly situated litigants.

No Roadmap

Provide a clear roadmap up front about the key points you intend to address and the order you will cover them. This organizing principle helps the judges follow your position and serves as a checklist you can refer back to in order to keep the argument on track.