Oral Arguments Guide for Counsel - page 9

GUIDE FOR COUNSEL
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front argument table after the Judges have departed and the Clerk has announced that "the Court
is in recess."
3.
Protocol
The Court is not a jury. A trial lawyer tries to persuade a jury with facts and emotion. At
this Court, counsel should try to persuade the Court by arguing points of law.
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.
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. (The official record
of the proceeding is an audio record.) Try not to 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 34(g) 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
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