Oral Argument Preparation Mock SCOTUS Oral Argument Preparation

Procedure 10 minutes per person Appellants go first then the Appellees 1-2 minutes rebuttal for Appellant (reserve in advance if needed)

Procedure Dress Professionally

Structure Argument Introduction Body Prayer

Introduction Begin argument/rebuttal with “May it please the Court?” Introduce yourself and co-counsel and who you represent Reserve rebuttal time if Appellant Tell the court what you want them to do: “Today, this Court should affirm/reverse the holding of the 14th Circuit.”

Body Theme Roadmap Facts Argument

Theme A short phrase that sums up the theory of your case Example: “Your honors, there are no magic words to explain to a suspect his Fifth Amendment privilege against self incrimination.”

Roadmap (Issues) Tell the court what they are going to have to do and why they should do it. “The Court should decide X for X number of reasons” Compare: “Today the Court must decide Mr. Door’s Fifth Amendment rights were violated because he was not given proper Miranda warnings.” “Today, the Court should decide Mr. Door’s Fifth Amendment Privilege against self incrimination was violated for three reasons: “First, Mr. Door was never given proper Miranda warnings. Second, Mr. Door did not knowingly, intelligently, and voluntarily waive his Miranda rights; and Third, it would not be overly burdensome for police officers to give more specific Miranda warnings.”

Facts State the facts from the perspective of your client. Create a BRIEF story (30-45 seconds) The judges may ask you to skip the facts, know where to head in your argument if this happens.

Facts Don’t forget the procedural posture of the case: How did the District Court rule? Why is that important “The District Court denied Mr. Door’s motion to suppress. On appeal, the Fourteenth Circuit affirmed the District Court’s denial and upheld Mr. Door’s conviction.”

The Argument You should not read directly from the bench brief during your oral argument but you can (and should) use the arguments, structure and legal authority cited in the bench brief to organize your oral argument. Organize your argument according to the issues set forth in your roadmap.

The Argument – Using Legal Authority An effective oral argument sets forth ideas and principles and uses legal authority to support and illustrate those ideas. Use the law to illustrate your point. Don’t let the law become your point. Refer to the court you are citing and the full name of the case the first time you refer to it. From that point on drop the court and shorten the name.

Prayer/Conclusion Last chance to tell the Court what you want it to do and why Be strong Be concise Be brief Incorporate your theme Last sentence out of your mouth should either start or end with “the lower courts order should be affirmed/reversed” (but not both)

When Time Goes By . . . The Cardinal Rule: After time has expired, you may only continue to speak with the permission of the Judges. When you see that time has expired, conclude your thought in the briefest manner possible

The Litany “Your Honor, I see my time has expired . .” “ . . . We respectfully request you reverse/affirm the court below” “ . . .may I have a brief moment to conclude” (If granted, anything more than 10 seconds is not a “brief moment”) “ . . . May I address your honor’s question and have a brief moment to conclude.” (Use when Judge’s question runs into the end of your time)

Rebuttal Judges can ask questions 1 to 2 minutes (reserved at the beginning) Judges can ask questions You probably only have time to make one strong argument, so choose wisely. Rebut the Appellees’ strongest points: Listen to what the judges are questioning the Appellees’ about, and answer those questions from your perspective Point out why the Appellees’ argument leads to bad results or constitutes bad policy If Appellee relies heavily on one or two particular cases, distinguish those cases and explain why the appellees reliance is misplaced

Questions From the Judges Answer directly (“Yes, your honor” or “No, your honor) even if you plan a qualified answer NEVER interrupt, even when a long-winded judge is stealing your time. It happens. If you do not understand the judge’s question, you can ask for clarification if necessary. If you disagree with a judge’s conclusion, be respectful and fully explain why. “Respectfully your honor, I disagree….”

Things to Do Maintain eye contact Speak slowly and clearly Breathe Have a conversation with the judges Advocate for your client Do not read. Use an outline when you deliver your argument You can write a full argument to prepare, but shrink it down to an outline for the actual presentation

Things NOT to Do Play with your clothes, hair, or pen Pace or shift weight Clutch the podium Say “I believe,” “We believe,” “I think,” or “We think” List Circuits Over gesture (don’t point at the judges) Use the words “clearly” Be over dramatic, this is not a jury trial. Cop an attitude -Pace or shift weight: stay behind the podium, don’t move about (pace) -Shift weight: swaying between feet; put feet on floor, even out weight and stay put --Court does not care what you think or believe, care what law is -Count circuits: make what the courts say count, not just that a number agree with your position