At the Lectern: My System for Oral Argument
This post is not trademark specific (gasp!). But if you’re a trademark litigator, you’ll eventually find yourself making an appellate oral argument. Even if you don’t find yourself on appeal, you’ll definitely be arguing motions before a district court. Having a useful system to aid you in oral argument can significantly improve your chances of success.
As a young attorney, I tried a lot of different systems. I tried writing out an entire argument, memorizing it, and bringing the entire written out argument with me to a hearing. Of course, this was useless because you can’t just read it during a hearing and it’s impossible to find anything quickly in a fully written out argument. I also tried memorizing arguments, cases, and points and going to a hearing without any notes at all. I’ve gone to the lectern with the entire pleadings file, binders of discovery, and redwells of notes and research—that’s a lot of lugging for no reason. I’ve done handwritten notes, bullet points, and dense Harvard outlines. All of these methods have met with varying degrees of success.
But over the years, I have come to settle on the manila folder method. This is what I use now and I have had far and away the greatest success with it over any other method.
The Sturdy Comfort of Manila Folders
The first thing I do in this system is create the manila folder(s). It’s a good refresher of the arguments, evidence, and cases (especially for an appellate oral argument that may be taking place more than a year after the briefs were filed).
I don’t remember where I came across the idea of using manila folders to house notes for oral argument (also simply called the “folder method”). The main advantage—and it’s a huge advantage—of using manila folders is that you can find the information you are looking for fast and eliminate the shuffling of papers during oral argument, which can make you look disorganized and unprepared. And at the appellate level, you’re given a set amount of time to make your argument so there’s no time to waste.
I certainly did not come up with the idea myself. I think it’s been around for a long time. If you google oral argument and manila folder or folder method, you’ll get numerous results on the subject. Most them involve writing an outline or notes directly on the folder. Even though the folder method is out there in the public domain, most lawyers don’t use it. In fact, I cannot remember the last time I saw an attorney use it in one of my cases.
I’ve adapted the system to my own needs and likes, as you can too. My first hack is that I usually use two manila folders instead of one. In a complex appeal, there is usually just too much information that I want to be able to access to fit onto one manila folder.
The First Folder
On appeal, you have the record in the appendix (or the excerpts of record in the Ninth Circuit). So on the front of my first manila folder, I staple a chart of the key items in the excerpts of record. I don’t want to fumble around with the actual appendix or record during oral argument if a judge asks me where something can be found in the record. On the back of my first manila folder, I staple a timeline of the relevant facts in the case. I usually already know this chronology by heart but it’s very convenient to have in the event of a brain cramp. That leaves the middle of the folder. This is where I put the outline of my oral argument. For the longest time, I outlined my oral argument in the Harvard Outline format. Probably because it’s the default outline method I was taught and used in school. And it’s fine. But it can be difficult to locate something quickly in that outline format. Lately, I’ve been outlining my oral argument using the mind map method. Right now, that’s the method I prefer. I can quickly locate my arguments and check off points that have been made. Whichever method I’m using, I put the outline of the oral argument in the middle of the first manila folder. Here’s what it looks like:
The Second Folder
The second manila folder is all about legal authority—statutes and case law. And if you’re arguing an appeal, any of those federal judges could take a deep dive into any statute or case cited in the briefs at any moment. You’ve got to know legal authority on appeal, and there could easily be 50+ statutes/cases cited in a complex appeal. My method basically involves making tables for each legal subject area, placing the relevant authority in each box, and listing a couple of bullet points under each one to jog my memory should it fail me. When I have a ton of authorities, I resort to small font sizes and legal size manila folders. Here’s what it looks like:
Going back through all the statutes and cases is a significant time investment. And there’s only so much that you can fit in the box for each case, so while these notes are a helpful crutch, you’ll need to try to commit as much to memory as you can.
We’re Talking About Practice
You’re not good to go just because you’ve created some awesome manila folder cribnotes. Now comes the hard part. If this blog post were a movie, this would be the part that they turn into a training montage. You’ll start off the montage fumbling your argument and throwing down your manila folders in disgust, but you’ll end the montage by eloquently orating the hell out of your oral argument to the delight of smiling, nodding judges turned into yes-men. Below is what my oral argument training montage usually consists of.
The first thing I do after I’ve finished creating my folders is craft an oral argument. On appeal, you’ll have a set amount of time to make your argument—usually 10 or 15 minutes. I usually subtract 2-3 minutes for rebuttal if I’m representing the appellant or for addressing opposing counsel’s opening argument if I represent the appellee. I then create an oral argument from start to finish that fills that time perfectly. That way I know that I can at least fill the entire allotted time in a doomsday scenario in which the judges say nothing at all (never happens).
You have to practice your oral argument out loud in the same way you’d give it in court. So practicing by whispering under your breath doesn’t help. Practicing out loud is the only way to get the cadence down and to take what you’ve written and tweak it to make it sound more like you naturally talk. This can get tiring and repetitive but it’s well worth it. Close your office door and get to it. Turn the radio off when you’re in the car alone and practice. Ideally, I like to start doing this about a week before my oral argument.
Questions & Fluidity
An appeals court is not just going to let you get up, give your oral argument, and sit down. You will be peppered with questions. To prepare for this virtual certainty, I take a stack of index cards, write a question that the judges might ask on the front, and write my answer on the back. To help anticipate potential questions, I’ll have another attorney read the briefs and help come up with questions (it’s helpful if that attorney isn’t involved in the case). I’ll even write down some out-of-left field questions—anything I can think of. I prepare a lot of index cards.
Then I practice answering the questions off the cuff. So I will start giving my oral argument and just pull out an index card randomly and interrupt myself as if I was a judge asking the question (or if I’m working with another attorney, she can do the interrupting with the index cards). This allows me to practice getting interrupted, answering a judge’s question competently, and weaving back into the rest of my argument.
In order to gain even more fluidity, I also break up my oral argument into distinct mini-arguments for each point that I want to make. Therefore, if a judge moves me to a different part of my oral argument with a question, I can make that part of my argument at that point and check it off my list (I used to try to do this mentally, but now I check it right off my mind map with a pen). This is also very useful because, if the judges sidetrack you with questions, you may no longer have the time necessary to make all your points. If you have self-contained mini-arguments for each point, you select your most important points and make them with the time left. Another thing I sometimes do is create a longer and a shorter version of an argument for each point I want to make. It takes some serious practice to get the feel of using your time just right, to select long or short versions of your argument depending on the time left, and to give your oral argument out of order. But once I’ve done this, I start to feel pretty good about the oral argument and the anxiousness melts away.
Put those wonderful manila folders to use during practice. You’ll want to get a feel for where everything is written down on them. Get used to referencing them when answering the index card questions. And make sure you practice referencing each part – the record, timeline, argument outline, and cases. Also practice checking off parts of your oral argument as you practice to ensure you make all your points.
Back in the day, I would do at least a few takes of my oral argument in front of a mirror. But even though you’re looking at yourself while you make your argument, it’s not nearly as useful as watching yourself on video. Once I feel like I have the argument down, I’ll set up my iPhone on my GorillaPod tripod and record myself making the argument. I try to set it up to mimic the angle at which the judges will be viewing me from in the courtroom. You’ll learn a lot from the video – hand gestures, tone, eye contact, posture, etc.
Adapting the System for District Court Hearings
Although I originally developed this system for arguments before a federal appellate court (the Ninth Circuit specifically), I have since adopted a scaled-down version for oral arguments at the trial court level (i.e., federal district courts and my episodic forays into state court). It can be helpful for just about any type of hearing but it works especially well for more complicated hearings, such as hearings on motions for summary judgment. The modifications required are fairly obvious and straightforward (e.g., substituting the chart of key items in the excerpts of record with key evidence filed in connection with the motion or getting rid of one of the manila folders altogether). The simplicity of the manila folder system allows a lot of room for customization and modification to fit your needs for different types of hearings.
Preparing well for an appellate argument is a lot of work. Obviously, there are different levels of complexity depending on the case. Generally speaking, I would say that preparing for an appellate oral argument using this system takes 25 – 50 hours, which is a significant amount of time that I build into the client’s appellate budget before filing the appeal.