Oral Arguments

Montana YMCA Model Supreme Court

Model Supreme Court

Oral Argument Guidelines

What is an Oral Argument?

Oral arguments are the reward for the time spent studying a case and perfecting a brief. An oral argument is where you can demonstrate the worthiness of the position you are presenting to the Court. You explain the arguments presented in your brief and get an opportunity to talk to the court about the case, listen to the Court's concerns, answer the Justices' questions, and clarify or correct any misunderstandings which the Court may have about the client's position and your argument.

Oral arguments are both similar to and different from events such as team debate. Like a debate, presenters need to know both sides of a case, speak extemporaneously, and be ready to adapt their arguments based on statements by the opposing side. However, in an oral argument, speakers can organize their allotted block of time as they see fit, and opposing parties do not speak directly to one another, nor do they question or cross-examine one another. Both sides only address the Justices, and only Justices may ask questions.

In a way, Attorneys do not "argue" at all, but rather enter into a dialogue with the Justices, explaining their positions in the style of a discussion or conversation, but one based on how the law is applied to the case at hand. The goal of the oral argument is to help the Justices understand the case and to win them over to one's own side. Therefore, think of the Justices as allies to be won over&emdash;not enemies to be confronted!

It is important to behave in a professional and ethical manner. The Montana YMCA Model Supreme Court Program challenges participants to accept and demonstrate the positive values of caring, honesty, responsibility and respect.

If possible, try to attend a hearing at the real Montana Supreme Court. They hear roughly 40 oral arguments a year, so there are many opportunities. The Court usually meets in Helena, but they also travel a few times a year to hear arguments in other communities around the state. The Clerk of the Supreme Court will have a schedule of oral arguments available about 30 days ahead of time.

Organizing an Oral Argument

Unlike a prepared speech in a legislative body or at an interscholastic competition, an oral argument is flexible. Justices can interrupt a speaker and ask questions at any time. Attorneys need to have a thorough understanding of their case so a change of pace or subject does not diminish their presentation.

To create an effective oral argument, prepare an outline of the points you plan to cover, but one flexible enough to change as needed. You may not even use all of it, because Justices will focus their attention on the particular issues of most concern to them.

Anticipate questions that may be asked and design your outline so that you already have many answers covered. This way, most questions will not take time from your presentation, they will just rearrange the order in which you present your points!

Remember the following basics:

Know the facts and the issues of the case. Usually teams divvy up the case and each individual argues one issue.
Know the applicable law and authorities provided in your case packet.
Understand BOTH sides of the issue so well you could argue either side (because you will!).
Be honest with the court. Do not assume facts not given, do not make up information, do not evade or maneuver around questions.
Notes are helpful and necessary, but not a crutch. Memorize your major points!
Do not plan to give a canned speech, but rather know the case well enough to discuss any part of it in any order.
Anticipate the other side's arguments and have plans to counter them.

Time Limits

Oral arguments in the Model Supreme Court will strictly observe the time limits below:

Appellant: Total of 20 minutes. Recommended procedure is to present argument for 15 minutes, splitting time between team members in an effective manner, and reserving 5 minutes at the end for rebuttal of Respondent's argument. If the Appellant team goes over 15 minutes, that time is taken away from their rebuttal time.

Respondent: 15 minutes total, no rebuttal. The reason the Respondent gets less time is because the Respondent is arguing for the decision already made in a lower court, so they do not have the same burden of proof as the Appellant. Respondents need to remember that they have only one shot at making their case, so need to anticipate and forestall possible ways their argument could be rebutted by the Appellant.

Time taken by questioning from the Justices is a part of the total time allotted. Justices have the right to ask a question whenever it occurs to them. Attorneys need to be aware that they could have their entire argument thrown off track by questions, and will need to adapt. A successful argument is not one where every point is addressed, but rather one where the Justices are convinced to rule in your favor.

Keep in mind that many questions asked by the Justices cover points that should already be in a well-planned oral argument outline, and so ideally you may only have to rearrange the order you present your main ideas. Be ready to think on your feet!

Here is one way a team can organize their time; however, teams are free to organize differently if they think it will be more effective. It is best to allot time to answer unanticipated questions from Justices, or to add, clarify or change material as needed. Always give yourself time to summarize and request a favorable decision from the court!

First Lawyer, introductory remarks and issue one: ±6&endash;7 minutes*

Second Lawyer, issue two and summary: ±6&endash;7 minutes*

Rebuttal (Appellant only): 5 minutes maximum
(either team member can do rebuttal as circumstances warrant)

* It is a good idea for each team to plan their total argument to run no more than 12-13 minutes, leaving time to spare for unanticipated questions during the hearing.

Structure and Content of the Oral Argument

Introductory Statements:

The following elements are required, be clear but concise.

Each team begins with the phrase, "May it please the court..."
The first speaker goes on to introduce him/herself and co-counsel as outlined in the Court Procedures script that is provided later in this manual.
The first speaker states the issues to be addressed and which team member will address them. Most Appellants give a very brief summary of the type of action involved and the judgment being appealed.
In the opening argument of Appellant, the first speaker should give a short statement of the facts to remind the Justices of the case. Respondents do not have to do this, but should have a statement of the facts ready in case they disagree with the Appellant's version. Don't take too much time rehashing facts the Court already knows, rather focus on what is pertinent to your client's case. (The Court may cut you off if you spend too much time here!)

The Argument itself:

Each Attorney presents in turn the substantive arguments for each of the issues. Remember to lead with your strongest argument!
Prioritize arguments so those each speaker considers most important are covered first.
Personal opinions or feelings are irrelevant. Application of logic, public policy and the law is relevant.
Spell out how the law clearly supports your case.
Factual statements or arguments of law must be able to be backed up by the resources in the case packet. Remember to (briefly) cite the law or court decisions as needed.
The Appellant provides positive reasons why the Court should overturn the previous decision as well as showing ways the previous court erred. The Respondent shows how the earlier decision was correct, but also has the tricky task of showing why the Appellant's arguments are not legally correct.
Again, anticipate possible questions from the Justices and prepare suitable answers. Allow enough time in your prepared argument for unanticipated questions. If you prioritize your arguments, you will have time to cover what is most important.

Concluding Statements:

When you summarize your arguments, be focused and active, This part of your presentation is what the Justices will remember best, so be interesting&emdash;but to the point.
Usually the second speaker does the concluding remarks, but not always. The team can divvy up the argument however they wish.
At the end of the argument, tell the court exactly what you want them to do; i.e., to uphold or overturn the lower court's decision. Always do this! Even if time is called, you can still ask if you can finish your sentence, (which is generally granted) then state, "In closing, we ask the Court to (uphold or reverse) the decision of (the lower court)."

The Appellant's Rebuttal:

The rebuttal may refute arguments raised by the Respondent, correct any misstatements or misconceptions that arose during the original argument, answer a question one could not answer earlier, or present additional information that may be relevant to the case. It is best not to rely on the rebuttal simply for extra time. It is not a good idea to talk just to fill time, either. If you only really need one minute, that's fine. Although some notes may be drawn up in advance for use as circumstances warrant, the rebuttal should be adapted to the hearing at hand, and not be a canned presentation.

How to Present an Oral Argument

When addressing the court, Justices are always addressed as "Your Honor," or "Justice (last name)," Answer questions saying "Yes, your Honor," or "No, your Honor," as appropriate. Never address a member of the Court as Mr., Miss., Ms., (etc.), or by first name.

It is a good idea to be able to have your entire outline in front of you. This makes it easy to check off points covered and rearrange your presentation as needed. It can be distracting to have to shuffle or rearrange note cards, risk dropping things, etc.

Rehearse. Practice your presentation, and have practices where others ask you questions or make you defend your argument so that you don't get rattled by the real thing. It is wise to practice using correct protocol at all times. Get in the habit of saying "May it Please the Court..." and "Your Honor" in practice sessions. Remember that your peers will be on the bench, so get used to using proper forms of address regardless of whom you are actually addressing.

While preparing in your home community, a team or delegation should locate a local Attorney, (if possible, one with experience in the Appeals process or who was involved in Moot Court competitions while at law school) and ask this individual to act as a "Justice" for a practice round, having them probe arguments and ask questions as real Justices will, then offering suggestions for improvement.

Suggestions on Appearance, Speaking Style and Manner:

Be a friendly professional; speak in a calm, dignified way. Stay cool and rational.
Don't read a prepared speech or directly from your brief. It's boring and you won't have the flexibility you need (besides, the Justices have already read your brief!).
Show politeness and respect for the Court&emdash;you are assisting the Court to reach the proper decision. They are your potential allies, not an enemy or opponent. Therefore, do not become defensive, hostile or condescending.
Do not address the other side directly. They can't answer. There is no Cross-Examination. You are in a dialogue with the Court, not with your opposition.
Think about your voice: Enunciate clearly, speak loud enough to be easily heard, avoid talking too fast or in a monotone.
Think about style: sound assertive and enthusiastic, but not arrogant or "ditzy;" be confident, not timid or condescending.
Be convinced of the rightness of your case.
Don't get overly dramatic; this is not argument to a jury. Justices are not easily swayed by emotion, and may find it distracting.
Avoid slang.
Think about gestures: Watch nervous hand motions; avoid drumming fingers or pen, cracking knuckles, putting your hand over mouth or into pockets, etc., avoid pointing.
Stand with good posture behind the podium. Don't pace.
Be quiet and unobtrusive in your manner while sitting at counsel table. Do not react outwardly to the other side's arguments. In particular, do not attempt to detract from opponent's presentation. If the Justices notice you during the other side's argument, it will probably not help your case!
Be as professional in your attire as possible. Avoid gaudiness in accessories or hairstyle.

Handling Questions from Justices

Justices are free to ask a question whenever it occurs to them. This can be unnerving, interrupting your whole train of thought! So, you need to know your case thoroughly. Understand the strengths and weaknesses of your arguments. Anticipate what the other side is likely to argue. Structure each point of your argument so it can stand alone without depending on happening in the order you originally planned.

Questions may also refer back to research materials in the case packet. It is a good idea for teams to have their research materials handy for quick reference. Both team members should be familiar enough with all case material so that one person can quickly locate a reference while the other is still speaking.

Keep the following guidelines in mind:

When the Justices interrupt, remember the old kindergarten rule: STOP, LOOK and LISTEN. Do not continue talking, do not interrupt Justices while they are speaking; it is very rude. Remember, you want the Justices to rule for your side. You are there to help them do so. Think of questions as an opportunity to improve your case!
Cut to the chase and answer the question. Don't say "that's a good question," or similar irrelevant remarks. The clock is running�
Answer with respect. Be neither hostile nor condescending.
If you know the answer, answer the question on the spot. Don't tell court that you will cover the matter someplace later in your argument unless...
...you need to defer to your teammate to answer a question. If your teammate can answer the question better than you can, say something like, "your Honor, this question is one better addressed by my co-counsel. With your permission, may they answer this question during their argument?" (Permission is generally granted.) Then be sure to do so!
...you have no clue. It's OK to say, "I don't know," and in fact this is preferable to evasive maneuvering, rambling, or going off on a tangent. If you can, say something logical and to the point. If you're stumped, politely admit it and then move on. If there is time, it is sometimes possible for whomever is not speaking to look up the answer and then address it later. If you are the Appellant, you can also look for the answer then mention it in your rebuttal.
You may ask the Justices to clarify their question if you don't understand it. If they cite case law, you may ask them which case in the packet they are referring to if it isn't clear. Just remember: the clock is running�
Use questions to your advantage. If you have properly prepared the case, you have anticipated most questions, so you can answer the question in such a manner that you have actually benefited from the question and taken care of something you already planned to address.
Concise answers are usually the best. If the Justice is not satisfied, s/he will ask follow up questions. You don't need to ask a Justice if you have answered a question properly.