Overview

The purpose of oral argument is not to restate the information presented in your appellate brief. The purpose of oral argument is to stress key points that will help to sway the Court in your favor. According to the official guide to arguing before the Supreme Court, you should consider preparing for oral argument like you would packing for a cruise. If you lay out all your clothes, you’ll end up putting half of them back. Layout all your arguments and put half of them away. You won’t have time to present everything.

For the Lawyers (Scroll down for Justices)

Requirements

Each of you will be prepared to deliver 10 minutes of oral argument in your case. Your oral argument will consist of your prepared statement as well as the questions asked of you by the Justices. You are expected to arrive in class with a well-constructed outline of your argument. However, you most likely will not have an opportunity to complete this argument as the justices will be able to ask you questions throughout your delivery.

The outline of your argument should contain the following information:

• The question presented by your case

• Your response to this question

• A list of precedent setting cases and brief summaries of the precedent established

• Bullet points of your main arguments

Writing the Opening Statement for your oral argument

• Think of this like the introduction to an essay. Start by introducing the amendment that lies at the heart of your case. For example: The Fourth Amendment requires the Court to balance two competing values: the government’s need to promote order and protection in society and an individual’s right to protect his or her privacy. This amendment places limits on what the police are and are not allowed to do.

• Then introduce your case and explain how it relates to the Amendment. You can briefly review the facts of the case and identify the Constitutional question.

• Lastly provide an overview of your main points.  At this point, the justices will be free to ask you questions.

General Suggestions (These are drawn from the guidelines published by the Supreme Court.)

• Know the case record and be prepared to ask answer questions based on the precedents which apply to your case.

• Have a CUT TO THE CHASE section prepared at the end so you can quickly summarize your main ideas for the Court before your time runs out.

• You do not persuade the Court by appealing to emotion to using lots of facts as you would at the trial level. At this level, you are arguing the law.

• You do not need to summarize the facts of the case. The Justices know the facts of the case from reading your brief.

• Do NOT rely on humor. These attempts usually fail in front of the Court and assembled guests.

• Answer all questions asked by the justices. Do not interrupt the justices. Anticipate possible questions and be prepared with answers.

• The Justices will often ask you a hypothetical question. For example, if we rule in favor of you, what happens if. . . The purpose of these hypothetical questions is to consider the ramifications of their decisions. Be prepared to answer these questions.

• Review the oral argument in your case. Check Oyez for a recording and the transcript.

For Justices

Requirements

Each of you must be prepared to question both the petitioner and the respondent in each case. This means you must be prepared. You will be able to read the appellate briefs submitted by both sides. In addition, you will a list of precedent setting cases. Your job is to create questions which will help you to better determine how you will rule in the case. Your questions should reflect your judicial philosophy. Listening to the oral argument (and reading the transcript) of the cases we will hear in class will be a help to you.

Each of you should arrive in class on the day of oral argument with at least four questions for each side in each case. Your questions should reflect your familiarity with the case as well as your effort to stay in character. You will be assessed both on the written questions and on your performance during the oral argument.

General Suggestions

• Justice use oral argument as a time to determine where they stand on the constitutional issue under debate. They talk to one another through the lawyer with the questions that they ask. Keep that in mind as you are preparing. If you are a judicial activist, how does the other side see this case? What kinds of questions can I ask to show her the errors of her ways?

• The Justices like hypotheticals—if we decide the case this way, what happens if. . . Think of some good hypotheticals to use in oral argument.

• Much of oral argument will revolve around how the lawyers are using the precedent setting cases to justify their position. You MUST know these cases and be prepared to ask questions about them. After reading the appellate brief, you might decide that the lawyer is misreading a key case and misusing a precedent. Be sure to ask a question which illuminates this error.

• Often, justices on the Supreme Court will not care much about individual facts of the case, but will focus on the broad constitutional questions and national impact of any decision reached by the Court. However, feel free to ask whatever you need to have answered to help make up your mind concerning the issues of the case.