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Intro to

Oral Arguments

Legal Communication II

Quick Tips on Oral Advocacy

by Judge Richard Gabriel

Examples

Example #1:

What goes wrong here?

What could the lawyer have done better?

Example # 2:

Argument on a Motion to Dismiss

What is the attorney requesting?

Prepare

What is the purpose of oral arguments?

"The purpose of oral argument is to emphasize and clarify the argument in the briefs."

U.S. Ct. of App. 6th Cir. R. 34(g)(1)

Time Limit

Varies by Court

  • The Supreme Court usually allows 30 minutes per side
  • Federal Circuit Courts often limit time to 15 minutes per side, but parties can request more time
  • Our class: 10 minutes per side

Addressing your Opponent

Appropriate:

  • "Opposing Counsel"
  • By party, e.g., "Petitioner" or "Appellant"
  • My Colleague or "My friend" (traditional in SCOTUS)

Not Appropriate:

  • By title or name "Mrs. Amarante"
  • By first name
  • By epithet, e.g., "Crooked opposing Counsel"

Addressing Members of the Court

Appropriate

  • "Your Honor"
  • By title and name, e.g., Justice Ginsburg

Not appropriate

  • Informal titles, e.g. "Sir" or "Ma'am"
  • By first name: "As Ruth pointed out earlier . . . ."

Rules and Conventions

  • When a judge starts talking, you stop talking.
  • Never talk over a judge
  • If you are in the middle of answering a judge's question when time runs out, you may ask for permission to briefly conclude your answer.

Stance at the Lectern

  • Overall goal: minimize distractions so that the focus is your argument, not you
  • Stand up straight rather than bending over the lectern
  • Hands on lectern, but do not lean on the lectern
  • Minimal hand gestures for emphasis is acceptable, but avoid excessive gesturing

Pace & Style

  • Speak clearly and slowly
  • Employ a conversational but formal manner of speaking
  • Memorize opening and closing
  • Maintain eye contact

Intro and Roadmap

Sample Roadmap

Practice Round

COMMUNICATE

YOUR ARGUMENT

PERSUASIVELY

Hypothetical. A happy but very particular bride named Becca Bernhardt had a contract with a caterer to serve cake with chocolate ice cream at her lavish wedding. The caterer served vanilla ice cream instead. Ms. Bernhardt hired a lawyer to sue the caterer, Ellen Meyers, seeking a refund of the amount spent on the (expensive, locally made) ice cream, $10,000. Ms. Bernhardt’s complaint explains that the contract included a clause stating that the caterer could, at her discretion, “substitute substantially equivalent foods” but asserts that chocolate ice cream is not substantially equivalent to vanilla ice cream.

Ms. Meyers through counsel has filed a motion to dismiss, arguing that the case must be dismissed because there was no breach of contract: she contends that chocolate ice cream is substantially equivalent to vanilla ice cream.

Decide whether you want to represent Ms. Bernhardt or Ms. Meyers. Each side will have 3 minutes to come up with a short (90 second) argument. Follow the script on the following slide.

Next Class

Oral Arguments

April 14, 2021

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