Oral Arguments Guide for Counsel - page 11

GUIDE FOR COUNSEL
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Rebuttal can be very effective. But you can be even more effective if you thoughtfully
waive it when your opponent has not been impressive. If you have any rebuttal, make it and stop.
There is no requirement that you use all your allotted time.
4.
Answering Questions
You should assume that all of the Judges have read the briefs filed in your case, including
amicus curiae briefs.
Anticipate the questions the Judges will ask and be prepared to answer those questions. If
a case with issues similar to yours was previously argued in this Court, consider reviewing the oral
argument in that case. Reviewing oral argument from a similar case might help you anticipate
questions from those Judges who heard the previous case. If an audio file of the oral argument
you seek is not available on the Court's website, please call the Clerk's Office, at 202-501-5980, to
find out whether a recording of the oral argument is otherwise available.
Make every effort to answer the Judges' questions directly. If at all possible, say "yes" or
"no," and then expand upon your answer if you wish. If you do not know the answer, you should
say so. When a Judge asks you a question, do not respond by posing another question to the Judge.
If counsel stumbles on a question from the Court or does not fully answer it, it is a good
tactic for an amicus curiae counsel or other counsel supporting that counsel's side to begin
argument by repeating the question and answering it correctly and completely. Other supporting
counsel will have had time to reflect on the question and perhaps develop a better answer.
A Judge will often ask a counsel seeking to establish a new precedent: "Do any cases from
this Court support your position?" Be ready for the question, but be careful to cite only those cases
that truly support your position. Do not distort the meaning of a precedent. The author of the
opinion is likely to be a member of the Court and to have a remarkable memory of exactly what
the opinion says. If you are relying on a case that had a dissent or multiple dissents in an en banc
decision, be sure to mention that there was a dissent by Judge
___
in the case. Again, that Judge
may very well be on the panel.
In appropriate cases, suggest to the Court that bright-line rules should be adopted and
suggest what they should be.
If a question seems hostile to you, do not answer with a short and abrupt response. It is far
more effective to be polite and accurate.
If a Judge poses a hypothetical question, you should respond to that question on the facts
given in the question. In the past, several attorneys have responded: "But those aren't the facts in
this case!" The Judge posing the question is aware that there are different facts in your case, but
wants and expects your answer to the hypothetical question. Answer, and after that, if you feel it
is necessary, say something such as: "However, the facts in this case are distinguishable."
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