Although it is becoming increasingly common for courts to decide cases without oral argument, the ability to deliver a persuasive oral argument remains critical to a lawyer’s success in trial courts and, perhaps more so, on appeal. Most courts permit oral argument in a significant number of cases, particularly in civil matters where both parties are represented by counsel. In those instances where courts grant oral argument, it is difficult—but not impossible—to change a court’s mind if it has decided to rule in favor of your opponent. However, if the court intends to rule in your favor, the easiest way to change the panel’s mind is to be utterly unprepared or ineffective at oral argument. Thus, in addition to knowing how to write persuasive briefs, good lawyers must also know how to present a persuasive argument.
This article offers a number of guidelines to teach lawyers how to craft such arguments and provides several “do’s” and “don’ts” to help lawyers along the way, from preparation through argument itself. In Part II, we describe six different types of questions that you can expect when arguing a case—all described in baseball parlance—from the easy “softball lob” to the more difficult “fastball.” In Part III, we present five “do’s” and five “don’ts” that should be kept in mind when preparing for and arguing a case. Part IV concludes. By learning to recognize the different questions judges are likely to ask and mastering the “do’s” and five “don’ts” discussed below, lawyers can improve their likelihood of getting on base in the courtroom, or can at least avoid striking out.
Judge Stephen J. Dwyer, Leonard J. Feldman, and Robert G. Nylander, Effective Oral Argument: Six Pitches, Five Do’s, and Five Don’ts from One Judge and Two Lawyers, 33 SEATTLE U. L. REV. 347 (2010).