“All rise.”
You stand up, and instantly the blood rushes to your head. Your palms start sweating. Your heart feels like it’s about to beat out of your chest. You ask yourself: Do I remember all my cases? Did I triple-check my citations? Wait, what was my client’s name again?
“Whenever you’re ready, counsel.”
No matter how much you prepare or how many times you have previously appeared in court, pre-argument jitters can affect any attorney, but especially young attorneys new to the practice of law. In my prior role as a moot court coach and in my own commercial litigation and appellate practices, I have learned some best practices, tips and things to keep in mind to help alleviate—if not obviate—the anxiety that comes with presenting an oral argument before a trial or appellate court.
Do Your Homework
Almost all of the work done on an oral argument takes place before you ever set foot inside the courtroom. Proper preparation is key to both your confidence and success. Make sure you review the judge’s procedures to see if you are expected to send any documents in advance of the hearing. Familiarize yourself with the history of the case, especially if it’s one you have not done a lot of work on. Look up and save the directions to the courthouse, including information on parking and access. Print off at least four copies of every document and case you intend to rely on: one for yourself, one for opposing counsel, one for the court and one just in case. Taking small steps to prepare yourself for argument now can have big payoffs later.
Find Time to Practice
The more you rehearse your oral argument ahead of time, the better and more confident you will be when you present to the court. Yet, between answering emails, drafting documents and spending time with family, it can be difficult to find the time (and solitude) needed to practice your argument without interruption. Try looking for moments when you are alone and otherwise unable to tend to your other responsibilities, and practice then. The shower can be a great place to recite your argument, or in your car during your commute. If you look, you should be able to find lots of time during the day when you can practice without sacrificing the time needed for other things.
Stick With What Works
Since law school, I have always typed out a very basic outline of my legal and factual points, nothing more than a few snippets and case citations scrawled across the paper, and used it when practicing and presenting my oral arguments. Early in my career, however, an attorney for whom I have great respect told me his secret to oral argument: he hand-writes his entire argument verbatim on a legal pad and then uses it as a script to practice with and present from before the court. After learning his method (and eager to emulate his success), for my next couple of hearings, I hand-wrote my entire argument down before making it to the court. However, it turned out that fully scripting my arguments did not work well for me, and now I am back to using my original approach.
When it comes to oral argument, there is no “one size fits all” technique. You have to find what you are comfortable with and what works best for you. Don’t be afraid to ask around and try new methods if what you are doing does not feel “right.” Once you’ve found what “clicks” for you, stick with it, and do not be daunted by the fact that other attorneys are doing it differently.
Expect the Unexpected
Murphy’s Law dictates that “if something can go wrong, it will.” Sometimes, it feels like the same could be said for oral argument.
Every attorney who has given an oral argument on a motion or brief has a story of when they faced something completely unexpected during their presentation before the court. Whether it is a question to which you don’t know the answer, a surprise ruling, or a belligerent courtroom spectator, it can be easy for your argument to get derailed by the unforeseen.
To the extent you are able to prepare for the unexpected, do so. Think about what questions might come from the court, and picture the worst-case scenario for your argument. Taking anticipatory steps now can prevent the likelihood of something going wrong later. Try not to get stressed or bogged down by the minutiae of every conceivable outcome and circumstance that could happen during your argument; some things will simply be out of your control. Accept that fact, and stay focused on the things you can control. When the unexpected happens, stay composed, continue representing your client to the best of your ability, and focus on what brought you before the court in the first place. Remember, you prepared for this.
Be the (Very) Early Bird
I once attended a hearing, noticed by opposing counsel on his own motion, at which opposing counsel did not show up. I was there, the judge was there, but opposing counsel was conspicuously absent. After about 10 minutes of waiting, the judge ended the hearing and returned to chambers. It turns out opposing counsel had been stuck on a bridge and showed up at the courthouse mere minutes after we left. He had traveled from across the state to attend the hearing but did not know to account for the traffic hotspots only locals would have known to avoid.
Whether you are traveling a long distance for your argument or simply walking down the street to the courthouse, you should always lengthen the time you think you will need to get there. Doing so will allow you an opportunity to sit, breathe, think and review your notes upon arriving at the courthouse. If you don’t leave for the courthouse early, you may find yourself feeling rushed, flustered, and frustrated before your argument even begins—if you make it at all.
When your argument is in another city or state, consider arriving the day before and staying the night. Learn what parking is like at the courthouse and decide if it would be better to be dropped off. If you have never been to a particular courthouse, try to visit it the day before the hearing, and find the courtroom where the hearing is scheduled. It is always better to be unnecessarily and unreasonably early than even a little bit late.
Conclusion
Feeling nervous or overwhelmed in preparing for an oral argument does not mean you are a bad lawyer; it only means you are human. Keeping these simple things in mind beforehand can strengthen your argument, boost your confidence and help prevent anxiety later. By taking the necessary preventative steps and keeping things in perspective, you may soon find your pre-argument butterflies have all but flown away.
About the Author
Bradley A. Muhs is an associate at Trenam Law in St. Petersburg, Fla., focusing his practice on commercial and appellate litigation. He can be reached at bmuhs@trenam.com.