Earlier this week, I attended the annual banquet of the Patrick Higginbotham Inn of Court. The featured speaker was Seth Waxman, who served as chief appellate counsel to the U.S. government under President Clinton. Waxman said that there are three keys to presenting a great appellate oral argument:
1. If you want to present a great appellate oral argument, you must be passionate about your case. If you are just handling the case to make a living, it will show.
2. If you want to present a great appellate oral argument, you must prepare comprehensively. Don’t just do enough preparation to get by. Every argument deserves what others might call over-preparation. You should know every aspect of the case, including the entire factual record, all of the law, and all of the implications of every argument made in the case.
You should make a list of every question which might be asked at oral argument, including those which might be asked by an unprepared judge, by a moderately prepared judge, and by a thoroughly prepared judge. After you finish listing those questions, prepare your answers to each question. Then try to answer the questions. Finally, review your answers to the questions and make a list of all of the follow-up questions that might be asked in response to your answers.
You should try to explain the case to non-lawyers, possibly even school-age children. While most other aspects of your preparation will help you see the trees, this exercise will help you see the forest. And it is important not to neglect this big-picture perspective.
3. Before you stand up to present oral argument, know what one point you absolutely want to get across to the judges. Be absolutely clear in your mind what that point is. Be certain that, when your argument is over, you will have made that point. Polish and refine that point to its purest and simplest form. Be prepared to present that point in the fewest possible words. Have a plan to get that point made. When asked a question by a judge, answer the question directly and then—if at all possible—circle back to your point.