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Practice Intense Preparation
There are no tricks to good oral argument, and the single most-important component of great oral argument is preparation. I realize it is one thing to sayPrepare! and another to do it with a full caseload, but it is a lawyer’s duty to prepare adequately, if not better. You must find the time.
You must know four things about your case for every argument:
1The facts. Know the facts of your case backwards and forwards. Make sure you know which are actually in the record, too.
2The law. Although you probably researched the law at various points in the litigation, including when you wrote the brief, you should review at least the key cases before your argument, and learn them well enough to talk about the nuances without the case in front of you. The same goes for any statutes or rules involved, which you should know inside out.
You must also be able to state the rule you want the court to adopt and apply, whether it is a rule from existing law or a new one that you want the court to adopt. Enough judges have asked me about this that it has become one of my favorite questions to ask students when I judge moot court competitions — few are prepared with a rule. But if you want to win, you had better know how you want the court to do it.
3Your argument. Make sure you can explain why your client should win. This ought to go without saying, but I have seen an astonishing number of attorneys who cannot seem to articulate a coherent reason why their client ought to win.
Your job is to convince the court that your client ought to win, and give the court a legally-permissible route to that result. Don’t forget the second part. You cannot win without it.
4What you want. This should go without saying, too. You must be able to tell the court what you want it to do. By the way, as part of this, you should make sure the court can do what you want it to do. Your client won’t thank you for the time and expense of a motion hearing if the court doesn’t have the power to grant your motion.
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