Let ’ s Not Argue about the Benefits of Oral Argument
By Jonathan J . O ’ Konek *
Are you a trial or litigation attorney who regularly submits motions , pleadings , or legal briefs to district or appellate courts ? And are you looking for some unsolicited advice ? Well , if you answered yes to both questions , allow me to share with you a suggested practice tip . Request oral argument .
It may sound too good to be true , but what if I told you that you could improve the scope of your legal advocacy simply by adding these three words ( request oral argument ) to your legal filings . Because whether it is an opening brief in an appellate case , a motion for summary judgment before a trial court , or even a routine filing – such as a motion for miscellaneous relief before a magistrate judge – you will present a more persuasive case , and better advocate for your client , if you submit both a written brief that the court can read and present oral argument on key points about which the court can listen .
Advocate to Both Visual and Auditory Learners . Since each person processes and retains information differently , by only utilizing written advocacy – as opposed to both written and oral advocacy – attorneys may fail to adequately convey a key message to their audience , namely judges and opposing counsel . 1 In fact , how people learn can be classified into one of three categories : 1 ) visual , 2 ) auditory , and 3 ) kinesthetic . 2 Visual learners acquire knowledge by seeing how things are done “ with their eyes ” by watching demonstrations , videos , or PowerPoint presentations and , during presentations , focusing on a presenter ’ s “ body language and facial expressions .” 3 Unlike visual learners , auditory learners absorb “ new ideas and concepts better when they hear the information ” and as a consequence , “ written information may have little meaning until it is heard .” 4 Finally , kinesthetic learners “ are hands-on ” and grasp concepts “ through moving and touching .” 5 Generally , most people are visual learners , followed closely by auditory learners , though some people learn best through a combination of visual and auditory learning styles . 6
Use Oral Argument to Convey Your Important Points . As attorneys , we should capitalize on oral argument opportunities because they allow us to effectively advocate our positions to both visual learners – through our legal filings – and auditory learners – through oral argument . Now , I know many attorneys believe oral argument – specifically , appellate oral argument – is both unnecessarily burdensome and meaningless . 7 In fact , the primary criticism about oral argument is it “ adds little if anything to the ultimate result of a contested case ” and constitutes “ a pure waste of time .” 8 Another comment attorneys often make about oral argument is it never helps , but it can possibly hurt their case should they stumble or unartfully convey their position . 9 However , these sentiments fail to consider each person learns information differently , and to best advocate a legal position , attorneys must ensure their audience both understands and remembers their legal arguments . Consequently , in many ways , oral argument is akin to a lost art , like cursive writing – although it may no longer be “ necessary ,” utilizing it in an effective manner to convey an important legal or factual point can be a force multiplier because it makes an attorney ’ s message more impactful and memorable .
“ Show , Don ’ t Tell .” Another way to efficiently use oral argument is by highlighting exhibits , attachments , or snapshots included within your pleadings and explaining to the court the importance of these items . When I prepare legal filings , I try to follow the adage , “ show , don ’ t tell .” Instead of simply describing a key item , I
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