Oral Argument Tips Continued: Concede the Points that Hurt You

“Every man has his fault, and honesty is his.”

-          Timon of Athens  III,1; Lucullus, happy to praise Timon, but not to lend him money

No matter how well you prepare for oral argument, you cannot know for certain what the judges will focus on, or what they will ask you. And even the best laid briefs of mice and members of the bar contain weaknesses. Recognize this and be ready to quickly turn weak points around to show that, despite the problems your case may have, you still win.

Remember, if you are the appellant, you’ve already lost once. There must be a reason you lost. You can’t just blame the trial judge, and especially not the jury. Be prepared for questions that ask you to concede something. Don’t waste your energy trying to defend a weak point; earn credibility by admitting it. Then point out something in the case that cancels out the weakness or renders it irrelevant.

Similarly, as the appellee, you gain more traction admitting to a clear error than you do insisting to skeptical judges that it doesn’t exist. Concede the error; then show that it was harmless.