Oral Argument
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Trial Lawyer's Note Book:
Oral Argument

By Tony Zeuli of Merchant & Gould

I recently spent time with some trial judges.  The talk turned to oral argument – what works and what does not.  While these points may seem obvious to more seasoned trial lawyers, they bear repeating because many of the judges commented on how often even seasoned lawyers failed to follow them.  These points apply to intellectual property cases just as they do to non-IP cases.

DO NOT READ.   Every judge mentioned this point several times.  Oral argument is not an opportunity to read your brief, or even your notes, to the court.  It is a time to advocate, answer questions, and engage the court in a discussion.  So how exactly do you get away from reading?  Practice, practice, practice.  Well before your hearing, start by writing out your argument or detailed notes.  Then put that written document away and practice without any notes.  If the argument is long, start by practicing just a part of the argument.  As you are practicing, make an outline or have someone listen and make the outline for you.  What sounded good?  Put it in the outline.  What sounded bad?  Leave it out or change it.  Now compare your outline to your written notes.  If you forgot some key points, add them to your outline.  Now practice again without the outline.  By the time you are finished you should have a very short outline (2 or ...

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