Beyond the Briefs: Essential Strategies for Effective Oral Advocacy

This article was published in the Summer 2025 issue of The Federal Lawyer.

Most decisions in federal court—at the trial and appellate levels—are made based on written filings as a matter of necessity. With limited court resources and unprecedented caseloads, judges must be more selective when deciding whether to grant oral argument.

When a case or dispute is set for hearing—particularly in complex or high-stakes matters—oral advocacy skills can prove to be decisive in persuading the court. This article offers guidance on effective techniques and common pitfalls at oral argument so that practitioners can maximize these limited but potentially crucial moments in their cases.

 

1. Know the record and the law. The details can be (and should be) dispositive.

Courts typically grant hearings when grappling with specific facts or novel legal issues. In that scenario, be ready to talk about those facts and how the law may (or may not) apply to them rather than the general principles that are apparent from the briefing. Having a command of the record and the case law builds credibility.

This approach doesn’t require an eidetic memory. For ease of reference, consider creating summaries with key record citations and explanations of the relevant statutes or case law. In cases where the issue boils down to the text of the statute or contract, have that language readily available for discussion. It’s also important to remember that you will have the benefit of rounds of briefing to figure out what else you may need to review before your argument.

 

2. Carefully choose the advocate. Selecting the right advocate for oral argument is a delicate balance.

There are strong advantages to having the attorney who principally drafted the filings present argument. The drafter typically has the deepest understanding of the case’s nuances and the applicable law. As explained, that is valuable information for the court. The drafter is also likely to have the best recollection of the legal strategy because it was first set in motion in the filings. That attorney can readily explain why certain arguments were emphasized or omitted to ensure a consistent position.

All that being said, there are valid reasons why a different attorney will handle the matter once it’s set for oral argument—client request, subject-matter expertise, or even level of experience. But none of those reasons warrant the drafter being absent from preparation or the hearing itself. In fact, when considering experience level, younger lawyers should have opportunities to contribute to preparation and observe arguments before facing their first solo hearing. Those assignments are invaluable teaching moments.

 

3. Tailor your introduction. The movant or appellant’s introduction is the first opportunity to orient the court to your core position and state your best arguments for relief.

Frame the dispute concisely for a busy judge. District judges and magistrate judges have many active cases at one time, and they must balance hearing times with their more routine responsibilities (trials for district judges and duty assignments for magistrate judges). Meanwhile, circuit judges may hear your case on a multi-day or week-long docket.

One way to help the court is to explain what the case is “about” but quickly pivot into the strongest, most dispositive point. The court has already reviewed the filings, so there is no need to recount a long-winded procedural history or statement of the facts that you have otherwise fleshed out in writing. You can advance your position by highlighting the key facts or a favorable legal standard.

You must watch the clock. The introduction should be short—no longer than 30-45 seconds. Planning for any longer than that runs the risk you will not finish because the introduction should prompt questions from the court.

It bears mentioning that advocating as the non-movant or appellee will require a different approach. Your prepared introduction may fall by the wayside as your opponent’s argument develops and you hear more from the court. Be ready to “wing it” if the court is focused on an issue with your argument that can be addressed swiftly and without buildup.

 

4. Choose your battles. You will need to answer yes or no questions, prepare strategic concessions, and address difficult hypotheticals.

Questions are not interruptions. They are the very purpose of setting a case for oral argument. Answer questions directly and then use them as a springboard to your best points. You can prepare for questions by discussing the case with your colleagues during a “moot” or in an informal setting. Either one is an opportunity to develop straightforward answers that further your position. You can include a mix of attorneys—some who know the case (or the court) and some who don’t—so that you have a variety of opinions. During the appellate oral argument, you can track which judges are asking which questions to identify potential viewpoints and find common ground.

Some questions will require you to decide whether to concede weakness. That’s a difficult task because it depends on how the concession will impact your argument. There should never be any doubt that you must acknowledge the existence of binding precedent. But beyond that requirement, you can appear unreasonable and incredible if you fail to grapple with uncertainties or ambiguities. The better approach is to consider how facts or law that suggest weakness are immaterial to the ultimate outcome. You want to be the advocate who helps the court navigate important issues rather than fight on every possible front.

Finally, an outstanding advocate embraces hypotheticals. These questions test the boundaries of your case or the judge’s decision-making. Resist the urge to dismiss the hypothetical as irrelevant or to change the underlying premise. If you work through that exercise with the judge, you may reach the same favorable result. If the hypothetical reveals an extension of your position that is problematic, explain a principled limitation in the facts or law that will ease the court’s concern.

 

5. New arguments or authority better be “new.” Oral argument is not an opportunity to expand your position or to surprise everyone with additional authority.

There is no legal basis for raising a brand-new position at a hearing or oral argument that could have—but was not—included in the filings. That tactic reeks of gamesmanship. The court will often dismiss those arguments as abandoned. For truly new developments that require a material change to your position, you should file a motion that asks the court to allow supplemental or amended briefing. The motion should explain in detail the argument that you are requesting to present and why it could not be raised earlier.

A notice of supplemental authority should be used sparingly. It is only appropriate for decisions released after the briefing. The notice of supplemental authority is not a vehicle to flood the court with case law that should have been cited and discussed in the filings. If used correctly, the notice should explain the holding of a new decision and its relevance to your arguments.

 

6. Make your request for relief clear and concise. Your argument should not finish with a cliffhanger or an open-ended plea.

Conclude your argument with an explicit statement of the action you want the court to take (e.g., enter summary judgment for the defendant, grant the motion in limine, vacate the conviction for insufficient evidence, reverse for a new trial). Avoid vague requests or multiple alternative forms of relief that confuse your position. If you prevail, this request will facilitate the drafting of an order that reflects the outcome you wanted.

 

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While written advocacy remains the foundation of federal practice, there are compelling reasons for attorneys to continue to master the art of oral argument. These techniques for preparation and practice can make all the difference when you find yourself standing before a court wrestling with the issues in your case.

 

Brandon K. Breslow is a Partner at the law firm of Kynes, Markman & Felman, P.A., in Tampa, where he handles appeals and litigation support in civil and criminal cases. Breslow is on the Editorial Board of The Federal Lawyer and the Board of Directors of the Tampa Bay Chapter of the Federal Bar Association. He previously served as a law clerk for two years for a U.S. magistrate judge in the Northern District of Florida.