CBA Record April-May 2019
Pointers Before the Argument
–Get to the courthouse with time to spare. The last thing you want is to feel rushed or be out of breath before you start your argument. –If you are the second or the third argument scheduled thatmorning,listen to the cases before you because it will help you learn the rhythmof the court on that day andwhat to expect in terms of howactive the court may be in questioning. –In state court, by rule each party has 20 minutes for its main argument and the appellant has 10minutes in rebuttal.But the appellate court may not allot that much time to your case,and you may not be told that until the day of the argument.The court may also ask you howmuch time you need for your argu- ment before the argument begins,so be preparedwith an appropriate answer. –If you truly needmore time than that allotted by the court,you should request more time by motion in advance of the argument.The court may allow more time in more complex cases or cases with many parties.The Illinois Supreme Court and the Seventh Circuit,however,are fairly rigid in their time allotments. The Supreme Court follows Rule 352 to the letter and the Seventh Circuit gives you time inwriting before the day of the argument.Deviations fromthose time allotments are generally not allowed. –Checkwith court personnel to determinewhether they are keeping track of the length of your argument, and if there are any indications given to you of the time remaining for your argument (e.g.,lights,alarms,a spokenwarning,etc.). –If you are the appellant, prepare a short statement to give at the beginning including your name,who you represent,and a brief introduction of what the case is about and issues on appeal.You should assume the court has read the briefs, so you do not need to go into much detail on the facts. –After your brief statement, follow the order of the points in your outline, but do not read from your brief. –Answer questions immediately even if they are not on the topic you are dis- cussing at that moment.If the court has a question,it wants an answer when the question is asked. –Listen very carefully to the question;make sure that you understand it before you answer. The following points might be helpful in preparing for your argument: –Consider what questions might be asked – particularly focusing on vulner- abilities in your position.Have ready answers to those questions. –Discuss your presentation with friends and colleagues before the argument. Obtaining someone else’s input is often helpful in assessing the strengths and weaknesses of your positions. –If you have the opportunity, do a moot court with friends or colleagues. –Prepare an outline of your main points so you have a ready-made reference when you are giving the argument.Youmay not need an outline if you are pep- pered with questions during the argument, but it may be helpful in checking to see if you are making all of your points. Pointers for the Argument Itself
–Time your argument.Generally,you will know in advance howmuch time you have to make your argument.It is important to be aware of that limitation so that you can reserve time to touch upon your vital arguments.In doing so,you must build in time for questions and answers from the court and anticipate that you may well have much less time than you think you need to cover your issues, so you must be efficient.
–If the question calls for a yes or no answer, answer first yes or no, and then explain if necessary. –Do not be concerned if you never return to your outline due to the court’s questions.Just go with the flow.The best oral arguments are conversations. –An outline becomes more important if the court does not have questions. –Questions are good.Welcome them and do not seem annoyed by them. –Do not read lengthy quotations from the brief. –Make direct eye contact with the court when you are arguing to engage its members and draw them into the conversation. –Avoid any criticism of your opponent or the trial judge during the argument. You do not score points by disparaging your opponent or the trial judge.Stick with the issues. –If you have exhibits, you want them to be part of your appendix or in your briefs so you can refer to them during the argument.Do not bring blow ups of exhibits to show to the court.The time for props ended with the trial. –Have conviction in your statements and argument but avoid emotional argu- ments–this is not a jury.The court wants to know you are convinced that your argument is correct, but it does not want theatrics. –If appropriate,discuss the policy or impact of your position if the court agrees with you.If you are with an appellate court, cite pertinent authority from the supreme court. –Don’t be obsequious to the court when a question is asked by saying things such as“that is a good question.”You should be respectful, not flattering. –Be sure to end your argument by reciting the relief you want. Before you sit down, you might ask the court if they have any more questions, or if you are in the midst of answering a question, try to finish it. Do not over stay your welcome.Even if time remains and you are finished, sit down.
36 APRIL/MAY 2019
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