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Bryan Garner’s new book tells attorneys how to deliver winning oral arguments

July 31st, 2007 by Erich Vieth

The subtitle to Bryan Garner’s new book could have been “The secret is lots of hard work.” After all, in order to deliver a winning oral argument, one must first prepare to deliver that oral argument.  In preparing that oral argument, there is no substitute for critically thinking things through, then making sure that you have all necessary information ready at your fingertips for your 30 minutes in the spotlight. Garner’s book succeeds well because it breaks down the obvious need for hard work into identifiable tasks.

The title of Garner’s new book is The Winning Oral Argument: Enduring Principles with Supporting Comments from the Literature (2007). You can buy it at the website of LawProse.

Garner is well-known and well-respected as an educator and a lecturer on the topic of legal writing. I have long admired Garner and I have benefited tremendously from his advice. In a nutshell, Garner offers numerous techniques for thinking through your appellate issues with great care in order to write them simply and persuasively. He is the king of anti-clutter when it comes to writing a legal brief.  At his seminars, Garner often demonstrates how to turn a 12-page memorandum into a much punchier 6-page memorandum.  He uses that same general approach in his advice for delivering a winning oral argument. Anything that is a distraction to your client’s case must go.  This allows the important message that remains to be better highlighted.

The book is unusual in its organization. Rather than writing traditional chapters on various topics, Garner succinctly sets forth 82 points–these points are typically two or three sentences in length. Garner annotates each point with quotations from experts on oral argument strategies. The quoted writers include numerous members of the bench, including Justices of the United States Supreme Court. The materials in Garner’s book are well-organized and effectively edited. The quotations serve both to reinforce and to expand on the basic points raised by Garner.  Despite presenting 200-pages of information on a challenging topic, Garner’s book reads quickly and easily.

What are the 82 topics? Some of them are quite predictable, such as reminders to get rid of “ums,” “ers” and “ahs.” Under the general topic of preparing yourself to be a public speaker, however, Garner raises topics that are less obvious, though no less important. For instance, he suggests that we take specific steps to develop “a clear strong and pleasant voice” and to consciously “lower the range of our pitch.” He reminds us to “treasure simplicity” and to “master the art of allowing ideas to unfold logically in the listeners mind.”  He reminds us of the importance of strategic pausing.

Under the general topic of preparing for an oral argument, Garner reminds us to prepare both extended and simple formulations of each of our arguments. After all, we might not have the opportunity to speak at length without interruption. We should drill to the core of our arguments by preparing to state “this court should [rule in a certain way] for three reasons.”

Additional points address psychological concerns.  These include tips for remaining cool and calm, as well as making an effort to “carry yourself as if you know what you’re doing and you’ve done it before.”

Garner cautions us to distinguish between a “cold” bench and a “hot” bench. When a bench is “cold,” (not familiar with the facts and issues of your case) you must take extra care to introduce facts and issues before delving into the arguments. When the bench is “hot,” Garner encourages that we “go straight to the most important deep issue.” You won’t know whether the bench will be hot or cold until you begin your argument, of course. This makes preparation all the more important; you’ll need to prepare for both scenarios.

I have argued dozens of appellate cases over my career, and I am thus comfortable delivering oral arguments. Much of what I do at an oral argument, however, is intuitive. For instance, my preparation for oral argument centers on those issues I sense to be either dangerous to my case or dangerous to my opponent’s case. I’ve learned how to make oral presentations through both experience and experiment, piece by piece, often by discussing strategy with other attorneys and with judges. Getting to this point has required a lot of work.

As I read Garner’s book, it repeatedly occurred to me that would have been nice it woudl have been to have had access to Garner’s book 20 years ago. I found that many of the strategies I learned through trial and error are addressed within Garner’s 82 points. I appreciated seeing these points in writing, though, embellished by thoughtful quotations by appellate experts. Garner’s ideas have now provoked me to consider new strategies and procedures for preparing for my next oral argument. Because I have now read The Winning Oral Argument, I know that I am a better appellate advocate.

The learning process never stops for those who want to serve their clients well. Garner ends his book on this very point:

Don’t ever assume that you’ve mastered your full potential as an advocate. You’ll never do that. So continue honing your skills-everything from strengthening client communications to analytical thinking to powerful speaking techniques. Stock your mind. And practice.

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