Oral Arguments Guide for Counsel - page 9

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GUIDE FOR COUNSEL, PART II
Your argument should focus only on the question or questions presented in the briefs and
record on appeal. Do not deviate from that question or those questions. It is unfair to both opposing
counsel and to the Court to introduce arguments for which they have not prepared.
Ordinarily the Judges will know whether you are making your first argument before the
Court. Be assured that some first-time arguments have been far superior to presentations from
counsel who have argued several times.
As noted above, if your argument focuses on case law, statute, regulation, or other enactment,
be sure that the authority is printed in full in one of your pleadings so that you can refer the Judges
to it and they can be looking at it during your argument.
Counsel for the appellant need not recite the facts of the case before beginning argument.
The facts are set out in the briefs, which the Judges have read.
Please speak clearly and distinctly, and try to avoid a monotone delivery. Speak into the
microphone so that the Judges can hear you and you can be recorded clearly. Do not allow notes or
books to touch the microphones. Avoid reading your argument from a prepared script.
You should not attempt to enhance your argument time by a rapid-fire, staccato delivery.
Exhibits can be useful in appropriate cases, but be very careful to ensure that any exhibit you
use is appealing, accurate, and capable of being read from a distance of about 25 feet. Be sure to
explain to the Court precisely what the exhibit is. Counsel must advise the Clerk of the intent to use
an exhibit as promptly as possible and certainly before oral argument. (See Rule 34g of the Court's
Rules of Practice and Procedure.) For a good example of an exhibit used at an oral argument, see
the U.S. Supreme Court's decision in
Shaw v. Reno
, 509 U.S. 630, 658 (1993).
You should be knowledgeable about what is and is not in the record in your case. Judges
frequently ask counsel if particular matters are in the record. If you are asked a question that will
require you to refer to matters not in the record, your answer should so state; then proceed to respond
to the question unless advised otherwise by the Judge.
Never interrupt a Judge who is addressing you. Give your full time and attention to that
Judge—do not look down at your notes, and do not look at your watch. If you are speaking and a
Judge interrupts you, cease talking immediately and listen.
When a Judge makes a point that is adverse to you, do not "stonewall." Either concede the
point, as appropriate, or explain why the point is not dispositive of your case and proceed with your
argument. Conceding when appropriate gives you greater credibility with the Court with regard to
the rest of your argument.
Do not "correct" a Judge unless the matter is essential. In one case before the U.S. Supreme
Court, a Justice asked a question and mentioned "waiver." Counsel responded by stating that a
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