Tuesday, February 16, 2010

Oral Argument: A Note About Your Introduction

Last week, an inquisitive 2L approached me about her upcoming oral argument.  We spoke for a bit until it became clear to both of us that she did not really know what on Earth to do with her introduction sentence. She didn't know how to structure it or, more importantly, what particular functions it serves.

Many law students and, likely, lawyers encounter this same stumbling block.  I have been lucky enough to have participated in many moot court competitions before actually arguing before the California Court of Appeal three times (successfully) last summer.  Through trials, errors, triumphs, and blunders, I have learned a thing or two about oral argument.

One of the more important things that you can work on to focus your entire argument--not to mention direct the court to the point of your "presentation"--is the introduction.  The introduction acts as a sturdy, no-nonsense frame.  And it lets the court know that you know what the heck you're doing up there.

Now, to be clear, I'm not referring to the "May it please the Court, Jessie Zaylía, on behalf of Petitioner, X, Y, Z Corporation."  No, no, no.  I'm referring to the introduction of the argument--the very next thing you say after all of that preliminary stuff.

The introduction should be memorized... smooth.

For those who don't know where to begin... who aren't sure how to formulate a proper oral argument introduction, consider the following formula as a starting point:

Civil case: Party name + liability + theory + "because" + facts + verb + element

Allow me to explain.  Example: XYZ Corporation [party] is not liable [liability] for breach of contract [theory] because it's "thank you" email [facts] did not  constitute [verb] an acceptance [element of contract].

Another example... let's make this one a criminal case instead of a civil case, where we'll substitute liability for guilt or innocence: Ms. Peterson is guilty of first degree murder because 36 stabs to the chest satisfy the requisite malice aforethought.

These are just examples of where you can start.  A lot of times, moot court competitions will deal with a constitutional issue.  In this case, you would slightly alter the "formula" above to something along these lines: Act/Statute + constitutionality + "because" + facts + verb + constitutional provision/power/doctrine.

Example: RLUIPA [Act] is unconstitutional [constitutionality] because the imposition of strict scrutiny [facts] violates [verb] Separation of Powers [constitutional doctrine].

Note: If you have more than one issue to present to the court, get rid of the facts in your introduction.  Just tell the court that a statute violates whichever constitutional provisions.  Ex: RLUIPA is unconstitutional because it violates the Establishment Clause and exceeds Congress's Fourth Amendment powers.

Of course, there are variations to these things, but I don't want to confuse.  I just want this blog to present a very simple jumping-off point for beginners in the world of oral advocacy.  I, personally, would probably vary my own examples a bit, but the point is for you to become familiar with your own argument.  You also need to be comfortable presenting your argument to the court, which means that your introduction should be polished.

Get your intro down first so that you know exactly what is going on in your case before you begin outlining your argument.  You'll save time.  You'll be efficient.  Plus, your final oral argument product will be better for it.