Oral Argument - Themes to Be Working
“If I chance to talk a little wild, forgive me,
I had it from my father.”
Henry VIII, I,4; Lord Sands, a lively courtier
Whether appellant or appellee, the most precious time in your oral argument is the first two to five minutes. In this brief space, you have the judges’ highest level of attention. Make clear in these moments the theme of your argument. Let it tie together and carry forward everything else you discuss.
A uniquely important moment in an appellate argument is when the appellee rises to respond to the appellant’s argument. As the appellee, you cannot be locked into your prepared argument. You have only just glimpsed your opponent’s thematic thrust. Now you can see how to parry. When you step to the lectern, be ready to tee off on something the appellant argued or something a judge said in response to their argument. Remember your own themes, but bend them to the moment. If you rigidly charge forward with pre-planned oration, or anti-climatically revert to facts or background at that point, you might lose the court. It is my humble opinion that you don’t want to lose the court. Pick up on the momentum built (or hobbled) by the appellant and use it to your advantage.
