Be Prepared for Questions

“When I had all the answers, the questions changed.”

• Paul Coelho

         Today I would like to kick off a series called:

  Thirteen Things You Should Prepare for in Oral Argument

  While oral argument is actually a small fraction of the work on an appeal, it offers a unique opportunity to bring home your argument face to face with the judges. It is the true finishing touch for the appellate practitioner. I offer these tips with those thoughts in mind.

1.      Be prepared for questions.

       The phrase “oral argument” is a misnomer. It is not an argument; it is a discussion. At its best, oral argument is a conversation. The court needs to make a decision, and they want your help. Do not attempt to create a dramatic flourish or parade around as a great orator. It is your understanding and knowledge of the case that they are after.

       You should see yourself as an invaluable resource to the judges; you are there to answer their questions. Oral argument is a tool for the judges to pose questions and resolve their concerns. A judge that is on your side will often prompt you with questions to convince another judge who is on the fence. It is important to remember that they are, in most cases, right on the brink of a decision. Appellate judges very often leave the bench to go vote on your case. Oral argument is your last chance to affect their decision-making.

          So when the judges stop you to ask questions, don’t think of them as interruptions. Think of them as the reason you got out of bed today. Don’t just prepare for questions; hope for them. They are an invitation to your appellate coup de grace.