Oral Argument Tips from the Delaware Supreme Court

Delaware Supreme Court
Delaware Supreme Court

Members of a state Supreme Court recently shared on how lawyers should frame their oral argument and handle questions. The Justices on Delaware’s highest court first ask lawyers to begin by stating precisely the issues, the trial court’s claimed error, and what the Supreme Court should do about it.

Justice Jacobs suggested that attorneys tell the Court right off the bat what they want the Court to decide and why it should decide it their way. “If you can do that and do it in the first two paragraphs of your presentation, we’ll love you. Conversely, if it takes you forever to get there, we won’t.”

Justice Berger added that lawyers when stating the claimed error should abbreviate the facts or  jump right into the issues and weave the facts in.

Justice Jacobs next emphasized that attorneys need to understand the Supreme Court’s role before telling the Court what it should do. This requires knowing the standards of review and  how a favorable ruling fits into the existing fabric of the law. “For our Court to write a reasoned opinion, the presenting attorney must articulate a rule that can be sensibly applied in future cases.”

The Justices next explained how to best handle their questions. The Court warned that it is a hot bench because it does not grant oral argument unless the case raises serious questions. So questions are best viewed as a conversation to uncover the bumps and work through them. In working through the bumps:

  • listen to the question
  • embrace friendly questions (“Don’t shoot the lifeboats”)
  • respond to the question immediately
  • answer responsively by beginning each answer with yes, no, don’t know, yes but, or no but

In arguing appeals in South Carolina, I have unfortunately broken almost all of these suggestions. Listening is often the toughest. I tend to think about what I am going to say while you are still talking, and have an answer ready before you end your sentence.

It causes problems. In one case, I had to fight an urge to interrupt Chief Justice Toal before she finished her question. As it turned out, the question was so friendly that I could respond “absolutely” when she finished. Interrupting would have spoiled it.

On the other hand, I answer questions immediately. I have never had the urge to tell a Justice to wait until I get to his or her question later. Chief Justice John Roberts shared that as an attorney he handled this by putting his points A, B, C, D,  and E on index cards. He would then shuffle the cards. If his first point was C, he would reorder his points so that the next point is E, then A, and so on. That way his talk was seamless no matter which point came up first in the Justices’ questions.

The Delaware Lawyer article containing the roundtable discussion is available here.

Have you too broken any of the Justices’ suggestions? Please leave a reply.











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