Life at Duke Law

A Primer to Oral Argument

For those yet unfamiliar with the in's and out's of moot court oral argument, the following should serve as a guide.  For further guidance, consult a member of the Moot Court Board and/or view a video recording of past Hardt Cup or Dean's Cup finals.

Structure & Sequence

1. Opening
   Competitors should wait quietly in the hallway outside of the room to which they are assigned for tryouts until the judges ask them to enter.  Competitors may be seated after the judges sit down.  When the judges indicate that they are ready, the student should rise and approach the podium or lectern.
    
2. Introduction
   The very first statement out of moot court competitors' mouths should always be, "May it please the Court, my name is _____, counsel for the [appellant/appellee], _____."  It is very important to remember to say, "May it please the Court;" it is a well-established formality of moot court competition, to which you should adhere.
    
3. Theme
   Competitors should always begin an argument with a clear and persuasive statement explaining the essence of the case.  This statement should be confident, succinct, and, to the extent possible, slanted in favor of the competitor's version of the case.  For example, in a case where United States Armed Forces used a drone to attack individuals in a country with which the United States is not at war, counsel for the government might state the case in the following way:  "This is a case about the limits of territorial sovereignty in the face of global terrorism."
    
4. Roadmap
   After introducing herself and the case, but before making any further argument, a competitor should identify the TWO or THREE (but no more than three) issues she will discuss.  Make these issues  clear  and  straightforward .  For example, "This Court should find in favor of the [appellant/appellee] for two reasons...."  You should then list your main arguments.  For example, "...First, because this Court does not have jurisdiction; and Second, because customary international law is applicable in this case and is on the side of the [appellant/appellee]"
   
   If you think of (and/or organize) your oral argument in outline form, the two or three reasons contained within your roadmap should be the highest levels of your outline (below the conclusion you want the Court to reach).  The body of your argument should expand below the reasons you list in your roadmap.  The roadmap gives judges an overarching picture of the more nuanced argument that will follow.
   
   Memorize your opening and your roadmap . The most successful oral advocates memorize their opening roadmap and maintain eye contact with the judges throughout.  This is the best way to make a good first impression of confidence and preparedness.
    
5. Order of Argument
   Begin the body of your argument by discussing the first issue in your roadmap.  Make your argument, and then proceed directly to your second issue.  There is no need to pause or to solicit questions.  The judges will interrupt you with questions as they wish.  Answer their questions directly and use your roadmap and outline to find an appropriate place at which to continue arguing.
    
6. Conclusion
   When you have finished your argument, end with a clear statement of what you are asking the Court to do (a "prayer for relief").  For example, "...For the foregoing reasons, I respectfully request that the Court find in favor of the [appellant/appellee] and [take whatever specific action is specified in the materials]."

Etiquette & Style

1. At all times, judges are to be referred to as "Your Honor," with respect and deference.
    
2. Do not bring pens, pencils, or loose watches with you to the podium.  Limit shifting around and excessive hand gestures while at the podium. Many competitors keep their hands on each side of the podium to prevent this.
    
3. Approach your oral argument as a conversation with, not a lecture to, the judges.  Engage in an exchange of ideas with the judges and respond to their concerns.  Don't read a speech to them.
    
4. Be aware that  at any time  during your argument, the judges can and will interrupt you with questions.  It is vital that you fully answer the question to the best of your ability  when the judge asks it .  Do not tell a judge that you will answer that particular question later in your argument.  Go where the judge leads you, even if that means not following the argument that you planned.  Don't let this aspect of moot court competition frustrate or distract you.  Part of the challenge is adapting to and taking into consideration the judges' concerns, while finding the time and opportunity to still voice the important parts of your argument.
    
5. If you do not understand the question a judge asks, ask him/her to explain or clarify the inquiry.  It is fully acceptable to ask for clarification and almost always preferable to answering a question the judge did not really ask.
    
6. If a judge asks a "yes" or "no" question, answer first with "yes" or "no" -- then elaborate.  For example, reply with, "Yes, Your Honor, in fact ...," or "No, Your Honor, rather ...."
    
7. Never speak over a judge .  When a judge starts talking, you should stop talking  immediately , even if he or she has interrupted you mid-sentence (or even mid-word).
    
8. It is okay to stand firm in  respectful  disagreement with a judge as long as you can back up your position with a well-reasoned argument.
    
9. At the end of your presentation, the judges or bailiff (if one is present) will show you a "STOP" card.  Once you see the "STOP" card, immediately stop speaking.  If you are still speaking when you see the "STOP" card is presented, ask the Court if you may finish your thought or answer by saying, “Your Honors, may I briefly conclude?”  If the Court says, "Yes," then finish your thought or answer, but  do not take advantage of the Court's generosity :  Finish  only  that thought or answer, and then retire.  Do not make new arguments.
    
10. When you finish your argument (or run out of time), thank the Court and sit down.

Preparing Your Oral Argument

1. Know your arguments completely.  In planning your presentation, make sure to highlight and make a theme of your case's merits.  But also anticipate problems for your side and prepare responses to questions the judges are likely to ask or to issues that opposing counsel is likely to raise in his or her presentation.
    
2. Understand the basic premise of each of the supplementary materials.  You need not memorize all of the material given, but an understanding of the connections among the documents will benefit your argument and allow you to better formulate answers to questions from the Court.
    
3. Focus on the two most important arguments in the problem.  They should constitute your entire argument.  Oral arguments are brief, so you must delve into only the most important ( and convincing ) arguments available to your side.  With the 10 minutes of argument and two minutes of rebuttal that you have, do not attempt to argue all the points raised in the memorial or all the potential issues you have anticipated having to discuss in response to the judges' questions.
    
4. Always focus on why your side is right, rather than on why the other side is wrong.  When crafting your argument, put yourself in the judges' position.  Look for the weaknesses in your argument, anticipate the questions judges might ask, and plan responses that transition to the merits of your position.
    
5. Knowing when to make concessions without weakening the core of your argument is an important skill of oral advocacy.  If both sides of the case did not both have real strengths and weaknesses, if the case should have clearly been decided one way or another, it simply wouldn't even be before the court.  It is okay to stand firm in  respectful  disagreement with a judge, and it is okay to admit a weakness in your case, as long as it doesn't undermine the basis of your argument.
    
6. DO NOT WRITE OUT AN ENTIRE SPEECH to deliver to the judges.  Instead it is a good idea to make a brief outline to help you remember the key arguments and issues of your case, and to note key treatises and cases.  Try to limit your outline to one or two sheets of paper.  Use key words and phrases to jog your memory.  While you should certainly have some idea of what your argument sounds like -- what words you will use beyond your outline -- reading a speech is simply not persuasive.  Reading is one of the most common mistakes made by inexperienced oral advocates.  Approach your argument as a conversation with, not a lecture to, the judges.

Preparing for your argument? Here are some other tips from faculty members and members of the Moot Court Board

General tips

What is the best thing an oral advocate can do?

"Be confident. Even great advocates aren't perfect, and not every case is a winner, but presenting your arguments with assurance and speaking in a clear, forthright tone makes all the difference."

"Be prepared for all levels of knowledge in a judge. You never really know in advance if you have a judge who glanced at the bench brief or a judge who's spent a 30-year career practicing in exactly the area of law you're discussing. Learn to read a judge's comfort level with the material, and adjust the detail and complexity of your argument accordingly. Persuasion isn't always the art of having the most details — it's about knowing your audience and tailoring your message."

"Lead with your strongest point rather than building up to it. You should have an outline of your argument and be ready to proceed if you are not interrupted early on, but it's unlikely that you will get through many of your remarks as prepared. Accordingly, be sure to amplify the most important aspect of the case at the start and try to articulate the theme of your argument in the first sentence or two."

"Be able to steer the conversation by smoothly transitioning between questions and arguments. Doing so also creates a convincing yet conversational style that puts judges at ease."

"Where possible, weave into your argument the idea that you are not only correct on the law, but also seeking a just result. Although focused on the legal analysis, the judges are attuned to fairness considerations and can be persuaded by them in a close case."

"When asked a question, answer it directly. When possible start with a yes or no, but if the short answer requires a qualification to protect your client’s position, immediately follow the yes or no with that qualification."

What is the biggest mistake oral advocates make?

"Showing nerves."

"Being too formal. Even at the highest levels of appellate advocacy, an oral argument is closer to a conversation that an oration."

"Starting to give an answer before thinking about what to say. Advocates often rush into answering a question, fearing two seconds of silence, and then flounder or reverse course as they reformat their answers on the fly. It's always better to take a beat to be sure you know what you want to say before you start speaking."

"The most serious error at oral argument is not listening carefully to the questions and thus failing to address the concerns raised by the judges."

"Making a concession (one is almost never necessary, and you should be able to defend your ground on all levels)."  

Preparation for your Argument

What is the best way to prepare for oral arguments?

"Become comfortable with the record."

"Be able to articulate the standard of review applicable to the questions presented, and understand the appellate court's latitude with respect to each issue. Anticipate jurisdictional questions, and know the court's procedural options for resolving the case."

"Think about the limiting principles that can prevent unintended consequences of ruling in your favor. The judges will likely ask questions about the impact of your requested relief on hypothetical future cases. Assuage concerns about the proverbial slippery slope."

"Backstop your argument so that when it becomes apparent that a judge disagrees with your position about one point, you can say that even if the court doesn't accept that premise, you should still prevail, on some narrower ground."

"Try to put yourself in the place of the judges and think about but what questions they would ask and work on short, clear and accurate answers to all of them."

"Research, research, research. Then think about how to explain the case and your arguments in a compelling way."

"Rehearse, rehearse, rehearse. Practice out loud. Get comfortable with the way your argument sounds and with saying the names of the parties, cases, and statutes. Get comfortable with the language of the case, with the particulars, and it will be easy to talk about them fluidly without looking at your notes."

What does a successful oral advocate's outline look like?

"Short! A few key words on different points and maybe a phrase you want to repeat as theme of the case."

"No more than two pages, with annotated points in at least size 14 font. The outline should only be there as a backup, and it should be very easy to find the information you need."

"You won't be able to read your notes, so include only a few, useful "trigger" words. Ideally, you should know your case so well the notes are superfluous."

How much of an argument should be memorized?

"Memorize your introduction so that you can make eye contact with the court. Memorize the last paragraph so that your ending seems planned, rather than an afterthought."

"Be aware of the questions you will likely be asked. Although you will not be able to actually memorize answers to these questions, you should know in advance how you plan to respond. Internalize the substance of those responses, rather than memorizing the words, so that you can shape your arguments to fit the actual questions the judges ask."  

During the Argument

What is the most effective way to use the cases or other provided material?

"Cite to the names of cases only if (1) the legal rule is disputed and you are trying to convince the court that your version of the rule is the right one or (2) you are analogizing to a case to show the court why it should rule for you."

"Know the record very well and be prepared to answer every possible question about the facts or the proceedings below. Except in response to questions, though, oral argument is not the time to recite the facts of the case."

"Cases are most persuasive when they directly support your point or when they are strong analogies to a point you are making."

"Remember that arguments are short and spending too much time on citations will take away from the substance of your argument. It's great to look knowledgeable, but it's bad to look showy."

"Make sure that you're aware of what they mean and stand for and their relative chronological order."

What should you do if you think your competitor has a misstated a fact?

"Always be respectful of your opponent. However, if he or she has misstated a material fact, be sure to correct it and to do so in a way that shows how the correct fact helps your argument."

"You may correct them graciously. Say something like: 'I believe my opponent misspoke when discussing this point' or 'I would just like to clarify a point from the record'."

What should you do if you make a mistake?

"Don't freak out. If it is an important point, take a deep breath, clarify your point (walk it back if possible), and don't let the judges see you flustered."

"Don’t try to cover up the obvious with a lame explanation or excuse. Forthrightly admit that you said something wrong. For example, when I said X I was wrong, the correct response would have been Y."

How should you conclude?

"Short and powerful. No need for showy theatrics. In one sentence, tell the court what you want it to do and why it should do it."

"Often, an effective ending is a “bookend” to your opening in which you pick up on a phrase or theme you used in the opening."

"Ending shortly before your time expires leaves a great impression."

How do you make the most of a rebuttal?

"Don't respond to all of your opponent’s points. Just hit the biggest one or two on which his argument rests. Leave the court with sense of wanting to rule for your side and how they should do that."

"Rebut your opponent only on important points where (1) you were hurt and (2) you have the ammunition to do something about it."

"Think big, but narrow. Don't go after a minute detail or slipup by the opposing side, but don't try to overview the whole round either. Figure out what the one key issue is that the judge(s) seem to care about the most, and give a clear, straightforward reason why your side won that issue."

What kind of feedback might a competitor want to seek from a judge?

"What can you do better? What worked well? What was convincing/unconvincing in the argument?"

"Was there an effective argument I failed to make?"