Emond Exam Prep: 5 Practical Tips for Better Oral Advocacy

The first time I sat in on a hearing as a student, I was sorely disappointed. I had expected the snappy dialogue and a-ha! moments that a mild addiction to Law and Order had groomed me to expect. Instead, I found myself struggling to pay attention to the arguments. While real life practice is rarely as exciting as television, that isn’t to say that good oral advocacy doesn’t exist. Whether you’re preparing for a moot, working at your school’s legal clinic, or arguing a case in the real world, here are five tips to ensure that your oral submissions are engaging and persuasive:

1. Be confident

Even if your stomach feels like it is going to explode and your palms are embarrassingly sweaty, take a few deep breaths and fake it ’til you make it. Oral advocacy is a lot like theatre, and you’re the lead performer. Act confident even if you don’t always feel confident. Don’t slouch. Smile. Make eye contact with the judge and with opposing counsel. Remind yourself that you know your case intimately. Soon enough, this will become second nature to you, but in the mean time, practice makes perfect.

2. Be concise

Often, lawyers will simply read out their factums verbatim at a hearing. This is not an effective form of oral advocacy for a few reasons. For one, it can get very tedious—written language tends to be more stiff and formal. Reading out from a written script also prevents you from fully engaging the court. Moreover, this method misses the point of oral advocacy. This is your chance to focus on the strongest points of your argument, and elaborate on how they support your client’s case.

A lot of newer lawyers are afraid of paring down their submissions, but, fortunately, you know how to do that. Remember how you managed to compress a one-hundred page case into a brief case summary? This is exactly the same thing. I have had judges personally thank me for keeping my oral submissions brief.

3. Be honest about your mistakes

The thought of making a mistake in front of a judge and your colleagues is mortifying. But the chances of this happening at some point or the other are pretty high. After all, you’re only human. Maybe you forgot to mark an exhibit or you cited a case that has been overturned. Don’t make excuses. Own up to your mistake and take it in your stride. Apologize and be forthright about your shortcomings.

Relatedly, if your judge asks you a question that you don’t know the answer to, it is okay to say so. Don’t try to guess or make excuses. It is okay to say “I don’t know,” and offer to research the answer and send brief submissions within 24 hours.

4. Know your case inside out

This seems quite obvious, but I cannot emphasize enough how important this is in order to be a good oral advocate. Sometimes you will be able to make your oral submissions without interruptions from the bench, but sometimes the judge will intervene and ask you questions that you may not have anticipated. It will not reflect well upon you if you get flustered and have to sift through endless documents to answer the question.

It is only natural to feel nervous, but if you are well-versed with all the facts, the case law and the opposing party’s arguments, your nervousness will dissipate when you realize that you know exactly how to answer the question because of all the hours you’ve spent with the case.

5. Be flexible

There is no doubt that you must have thorough notes to refer to when you’re making oral submissions. But hearings don’t always go the way you expect them to, and you may find yourself in a situation where your prepared submissions are not very helpful.

While you certainly won’t have the “gotcha!” moments that you see on television, your plan might be derailed by a judge who wants to discuss an argument you haven’t considered or who requests that you focus on a particular point while you’re in the midst of making a different one. I have had judges give me very specific instructions about what they do and don’t want to hear. Once again, this is where knowing your case comes into play.

It can be unnerving when your carefully constructed plan is dismantled. The way to deal with this is to prepare submissions that are structured, but not to think of it as a rehearsed script. Sometimes you have to stray from the structure. Always be prepared to follow the judge’s directions. He or she is helping you put your best case forward.

UPCOMING ONTARIO BAR EXAMS DATES

Barrister Exam: Tuesday, March 12, 2019  |  Solicitor Exam: Tuesday, March 26, 2019