International Business Contracts: How to Brief Cases

How to Present Cases in Oral Arguments, Prof. R. Spitzmiller

Introduction

The objectives for this class include: “to improve verbal and written communications skills, including skills in advocacy, through legal writing and argumentation in English.” To achieve this goal, and to strengthen your abilities regarding the other objectives, you will present the major cases from the text in class. Lawyers refer to this activity as preparing and delivering oral arguments. Law students often have societies called “moot court societies” which argue real or invented cases to practice their skills in advocacy and legal research. As you know, the opinions in the text are the final decisions of courts of appeal (or courts of arbitral boards, etc.) of real cases. These cases, as reported, naturally, include the real outcome of the dispute, including the holding and order, determining which party has prevailed. To present these cases in a “moot court” situation, then, we must create a fiction, to a certain extent. The fiction is that we pretend, for the sake of the oral arguments and your legal research that precedes it, that we do not know the actual outcome of the case. In your preparation, then, you must rely on precedent, those cited in the text, or perhaps the dissenting opinion, if available, or even on your own common sense and imagination, within the bounds of reason. The judge, (in most cases it will be I) will therefore be free to determine, without prejudice, who will prevail in our mock case.

Method

The appellant always begins the oral argument. Which party is appealing should be clear from the actual outcome of the case below, which you will glean from the procedural history or order, etc., of the case as reported. You should begin your presentation with the phrase, “May it please the court, my name is ______and I represent ______in the case ______.” At this point, your oral argument will roughly follow the format used in your briefs: facts, issue, etc. However, because of our fiction (described above) and to better persuade the judge that your client should prevail, you will use advocacy tactics to underline the strengths of your case, and to downplay its weaknesses.

The tone and style of your argument is very important. You should never address the opposing counsel, but only the judge (as “Your Honor”). You should also always refer to the party you represent either by his/her/its official name, or as “my client.” Avoid colloquialisms. Avoid speaking in the first person singular; use the first person plural if you must be that personal. It is preferable to speak in the passive voice, e.g.: “It is clear that…” rather than “We believe…” However, when advocating a point, it is permissible to say, e.g., “We would urge this court to…” The purpose of avoiding the first person is to maintain a degree of objectivity in your argument. This is especially useful if you are the kind of person who tends to become too emotional when arguing. If, on the other hand, you are the type who needs to add conviction to your presentation, some use of the “We believe” phraseology might serve you well. You should strike a balance between the two extremes, (too much emotion and not enough) and seek a professional, firm, controlled, logical approach. I repeat, never direct your comments to opposing counsel, as this is considered antagonistic and disrespectful to the court’s authority. After presenting the issue, you should state clearly how it is that you believe the judge should rule. Then you must state the applicable law. If the law is on your side, stress that fact. If it is not, you must come up with arguments either to differentiate your case in some way, or that the law itself is unjust, outdated, or otherwise inappropriate.

How to Present Cases, Spitzmiller 2 These points become the body of your arguments. You should divide these arguments as logically as possible, perhaps stating in advance, e.g., “There are at least three reasons why this court should reverse the precedent: First, ….second,…etc.” This approach will frame the arguments logically for the court and help the judge to understand where your presentation is headed. The judge may interrupt you at any time to ask for clarification, or elaboration, of any of your arguments or even of your interpretation of the law or facts of the case. Here the quality of your preparation will be clear. Finally, you should summarize your arguments, restate the conclusion you want the court to reach, and ask it to do so. You should also ask the court for any remedies you are seeking on behalf of your client, be it money damages, injunctive relief, or merely the opportunity to be heard (the grant of jurisdiction). This is essential for clarity. Rebuttals will be allowed within the discretion of the court.

How to Present Cases, Spitzmiller 2