Litigators

Reflections On My First Oral Argument

It may be impossible to get rid of the nerves you'll be up against, but if you're well-prepared, things will go smoothly for you.

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I had researched, written (and re-written), and submitted my motion. I checked the calendar, and noticed that the day of my first oral argument was fast approaching. Naturally, I was nervous, but was able to ease my nerves (if only a little) by speaking with my colleagues, who gave me the following advice, which ultimately helped me navigate my first argument: (1) know the facts and the law, (2) moot your argument, and (3) be flexible.

KNOW THE FACTS, YOUR ARGUMENT, AND YOUR ADVERSARY’S ARGUMENT

First, mastery of both the relevant facts and the law is crucial. While this almost goes without saying, I was reminded to be ready for any question that a judge may ask. What was more surprising to me was the scope of the facts that I was required to know offhand. Although I joined the case towards the end, the judge could ask questions relating to the beginning or middle of the case, such that I needed to refresh my knowledge on the basics of the case — how it began, the substance of the claims asserted, significant procedural milestones — and everything in between.

The only way to accomplish this goal is to know the factual and legal record cold. My colleagues and I seek to accomplish this goal by reviewing the relevant briefs and exhibits and distilling them into a user-friendly argument memorandum, which can double as an invaluable cheat sheet for the real thing.

MOOT YOUR ARGUMENT

Next, the most practical point: simulated arguments are a great way to expose weaknesses and finalize preparation. After I reviewed all of the relevant papers and drafted an argument memorandum, I put this advice into practice and put my knowledge to the test in a moot argument with my colleagues. At our firm, we moot every argument that touches upon a substantive legal issue, no matter how small, with the knowledge that weathering questions from a skeptical coworker will expose strengths and weaknesses and will undoubtedly enhance preparation. This experience was invaluable as it made clear the facts I knew, as well as those I didn’t, and guided my final day of preparation before the argument.

BE FLEXIBLE

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Finally, it is important to resist the urge to overplan the way an argument will transpire and remain flexible. My colleagues advised me not to rely too heavily upon the materials that I had prepared since the argument itself would be dynamic. Given my nerves, this was probably the most difficult advice to internalize. However, while I did find myself relying on my argument memorandum at times, I found that my preparation helped cement many of the important details in my mind and largely removed the need for my reliance on prepared documents.

Although it is impossible to get rid of the nerves surrounding your first oral argument entirely, you can ease them by knowing the facts and the law, mooting your argument, and remembering to be flexible.

David Forrest was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at john.g.balestriere@balestrierefariello.com.

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