Oral Argument: Practice Tips by Karen Kimmey of Farella Braun + Martell

by Karen Kimmey from Farella Braun + Martell in San Francisco

Karen Kimmey has spoken at our annual Superior Court Boot Camps in San Francisco for more than ten years. Over that time she has provided a number of excellent resources for our attendees. Below is a short list of tips Karen wrote on Oral Argument.

 

  • Always check the tentative and be prepared to address any issues raised.
  • Check in with the court room clerk and be on time.
  • Treat the courtroom staff well.
  • Have a simple outline in front of you with key points and case cites.
  • Have brief remarks prepared but focus on answering questions.
  • Do not simply repeat arguments from your brief. Approach it in a different way.
  • Never address opposing counsel directly.
  • Do not interrupt opposing counsel or the judge.
  • Speak slowly. Don’t annoy the court reporter.
  • Avoid personal attacks or bickering. Judges hate it.
  • Know when to be quiet.
  • Come prepared with a proposed order.
  • Ask clarifying questions if unclear of what the court has ruled.

If you’d like to hear more from Karen, and listen to a program dedicated to motions, discovery and depos, you might be interested in this prior seminar at which she spoke:

9th Annual Superior Court Boot Camp: Discovery, Depos and Motions – Get it Right

You might also be interested in our upcoming 13th Annual CA Superior Court Boot Camp on October 12th, 2018 in Los Angeles and November 8th, 2018 in San Francisco. You can register there, or if you are reading this past those dates, purchase the audio package.

Introduction to Oral Argument

argument

We wanted to share with you some tips and advice from speakers at prior programs that we know you will find helpful! Check out this list of Oral Argument tips, created by Andrew Livingston, who has spoken at many of our Superior Court Boot Camps (and is speaking at our upcoming one this fall, 2018).

Let us know what you think!


Objectives

  • Learn how to prepare written materials for oral argument
  • Learn how to prepare for the spoken part of oral argument
  • Learn orienting devices to help your audience understand where you’re going.
    Learn how to deal with questions:

    • Cold benches, i.e., no questions
    • Hot benches, i.e., lots of questions
    • Answering questions
    • Moving on after a question
    • When to concede a point versus standing your ground
    • What to do when you don’t know the answer
  • Learn effective rebuttal

Preparing for the Argument

  • You should be developing your outline as you develop your knowledge of the facts and the law.
  • Your outline will probably start off very long; use the outlining process to refine your points over the course of multiple drafts.
  • Your goal should be to get your outline down to a single page, with single-sentence bullet points which you can reference during argument.
  • Consider coming to argument with a folder with:
    • your one-pager on one side; and
    • more detailed notes on the other side
  • Your folder is your security blanket; if you’re prepared, you might not need it at all.
  • The order of your argument can be just as important as the substance.
  • Think about placement, i.e., where within the argument you want to emphasize good facts and law, and where you want to [bury] bad facts and law.
  • Is there a bad fact or a bad case you want to get out in your opening so you can distinguish or neutralize?
  • Set aside dedicated time to practice your argument by yourself.
  • The goal is to get to the point where you won’t need to read from your outline.
  • Depending on time, resources, and the argument, you may wish to have a moot court session
  • If you do a moot argument, make sure the participants are:
    • familiar enough with the case to ask the right questions; and
    • can offer constructive feedback on your argument style
  • If this is your first argument—ever, or before this court—try to visit the court beforehand and watch another argument
  • Learn the layout, e.g., will you use a lectern or a table? Where is the countdown clock? Can you raise or lower the lectern? Where’s the water?
  • What are the judges’ names and where will they be seated?
  • How has the judge(s) ruled on this issue before?

The Argument

  • The first thing you need to know about speaking is that listening is at least as important.
  • The court will let you know what it’s interested in hearing, which often is not what you’re interested in saying.
  • If you’re prepared, you’ll be ready to listen to the court and adjust your argument accordingly.
  • Starting off with a concise, precise roadmap will help set up the audience’s expectations
  • Quickly state the relief and the reasons why the relief should be granted.
  • Use signposts in your argument to orient the audience
  • Let the court know when you’re moving to another point, and use that opportunity to once again map out your argument for the court.
  • Regarding plaintiff’s request for injunctive relief, the court should deny the motion because….
  • Make sure you understand questions asked, and clarify if necessary
  • TAKE YOUR TIME before
    • This is one of the hardest skills to learn in oral argument
    • Pause and think before answering
  • Resist the urge to fill the silence by saying the first (possibly incorrect) thing that pops into your head

Oral Argument Tips by Karen Kimmey

argument

Here’s another “How to” list of tips, from the do’s to the don’ts, from one of our favorite (and most loved by attendees) speakers at prior CA Superior Court Boot Camps –  we know you will find these helpful! Let us know what you think!

And don’t miss our upcoming 13th Annual Superior Court Boot Camp set for October 12th, 2018 in Los Angeles and November 8th, 2018 in San Francisco.


Oral Argument Tips, by Karen Kimmey of Farella Braun + Martel, and one of our favorite Superior Court Judges in Los Angeles.

  • Always check the tentative and be prepared to address any issues raised.
  • Check in with the court room clerk and be on time.
  • Treat the courtroom staff well.
  • Have a simple outline in front of you with key points and case cites.
  • Have brief remarks prepared but focus on answering questions.
  • Do not simply repeat arguments from your brief. Approach it in a different way.
  • Never address opposing counsel directly.
  • Do not interrupt opposing counsel or the judge.
  • Speak slowly. Don’t annoy the court reporter.
  • Avoid personal attacks or bickering. Judges hate it.
  • Know when to be quiet.
  • Come prepared with a proposed order.
  • Ask clarifying questions if unclear of what the court has ruled.

Opening Statements for Attorneys (Part II)

Last week on the blog we shared a snippet on Opening Statements from the upcoming book Public Speaking for Attorneys, written by Karen Kimmey of Farella Braun & Martel LLP in San Francisco and Beranton Whisenant of Foley & Mansfield in Miami. Karen and Beranton are both veteran speakers who continuously receive high ratings from our attendees.

The following is Part II of a the three part discussion on Opening Statements. Part I was published last week and you can find it here. Keep an eye for Part III next week!

Part II:
Delivery

Jurors often are quick to form opinions regarding the competence and credibility of counsel.  Aside from voir dire (which is severely limited in many courts), opening statement is counsel’s first chance to make an impression on the jury.  Jurors appreciate counsel who are efficient and respectful of their time, well prepared, credible and easy to understand.

How does a lawyer create such an impression with a jury?  Aside from being well prepared and knowing the evidence, a lawyer’s delivery style and non-verbal behaviors will have a substantial impact.  Every lawyer must determine the delivery style that is most true to himself or herself.  A lawyer who is naturally reserved will look false if he or she puts on a flashy demeanor before the jury.  A lawyer must work to maintain the jury’s interest, but too much drama or too many gimmicks in an opening are likely to fall flat, and potentially draw an objection.  Speak clearly and with conviction – aim for the style of a trusted educator.

While notes are helpful to ensure that all important points are covered, counsel should never merely read from notes.  Practice the opening statement until it can be presented with minimal or no reliance on notes.   In particular, the first few minutes of the opening statement should be completely smooth and delivered without any reference to notes, if at all possible.   Reduced reliance on notes will also allow counsel to make eye contact with jurors and to evaluate how they are reacting.

Research in advance what the judge’s expectations are regarding where counsel can stand during opening, and whether it is acceptable to step away from the podium and move around the courtroom.  If counsel does choose to walk during the opening, the movement should be purposeful and not distracting.  Counsel should be aware of any non-verbal tics or habits that might be distracting to jurors or might communicate shiftiness or nervousness.  Counsel should be very familiar with the rules of the courtroom and facile with all use of visual aids, technology and documents to avoid any fumbling or distractions.

Almost all opening statements of any complexity will generally benefit from some type of visual aids.  Counsel should think carefully about the types of graphics that will be most helpful.  As mentioned above, timelines and bullet point outlines of the topics to be covered can be very useful in helping a jury orient itself to the facts in the opening statement.  Other good options for opening statements include: (1) documents that identify the key players and witnesses by name, and perhaps with a photo; (2) graphics that explain processes or concepts necessary to understand the case; or (3) photographs or actual examples of important evidence (such as a photograph of an accident scene or a sample of a product alleged to infringe a party’s patent).  Beware, however, of using too many visual aids or relying heavily on a power point presentation.  Graphics can lose their power when overdone, and counsel can lose his or her chance to connect with jurors if the jurors are busy looking at a screen exclusively, rather than looking at counsel. Most courts require that the parties confer in advance about graphics to be used during opening statement in order to avoid any objections during the presentation.

Four Classic Ways to Organize Your Speech

Simply put, there are many ways to organize thoughts, ideas and themes.  Pick an organizational pattern that is right for your presentation.  Here are a few choices:

  • Sequential/chronological: Does your presentation move through a series of points that can be organized in a sequential or chronological pattern?  If so, do not attempt to jump around and explain your points non-sequentially or your audience can easily get lost.  If the points you wish to make or the story you have to relate occurred one at a time, stick to the chronology.  Your audience will follow right along with you.  It’s a lot like that two-page instruction manual that comes with your new electronic device and always goes through each step in sequential order.  Some topics just require this form of organization to be understood: What happened first? What happened second? Then what happened?  And sometimes you can start with the end and work your way back, but you definitely can’t skip around if a topic really needs a sequential presentation.
  • Categorical/topical:  Your main points may be most easily presented by category or topic.  Clearly state what you’re going to be covering during the course of the seminar or speech, give the audience a means to remember it and then proceed exactly as you described.  (For heaven’s sake don’t tell them you’re going to talk about Earth, Wind and Fire and then present it as Fire, Wind and Earth.  Stick to the categories you establish from the get-go.)
  • Compare and contrast: When making comparisons, be sure the comparisons are valid.  Apples are not oranges.  Don’t make the mistake of mixing up the two.  If you want to compare raising a child to raising a domestic animal, you run the risk of alienating the parents in the room.  (Or the pet owners, for that matter.)  But if you hit upon a comparison that works, by all means use it.  The same rule applies to contrasts.  Baseball is similar to football in that both are sports, both use a ball and both employ a points system.  In that way, you can compare the two.  But there are also many ways you can contrast them and examine the differences.  (George Carlin did this famously and to great effect.)  Using comparisons and contrasting examples is a wonderful way to hammer home an important point.
  • Problem — solution:  This is a simple way to both organize and present a speech cleanly and with little digression:  Set up a problem and then offer a solution (or several solutions) to that problem.  Be sure that the problem is one common to most members of the audience (the less obscure you can be the better) and try to offer novel or clever solutions rather than merely obvious ones.  You don’t want to talk down to them.  Within the problem — solution framework, you might, for example, discuss the causes and impacts of problems (such as gambling compulsions or addictions), review past or outmoded solutions that have failed in the past and, finally, provide a new or time-tested solution that is most likely to work.

Opening Statements for Attorneys

Recently Faith invited two of our speakers, Karen Kimmey of Farella Braun & Martel LLP in San Francisco and Beranton Whisenant of Foley & Mansfield in Miami to write a chapter on Opening Statements for Faith Pincus’ upcoming Public Speaking for Attorneys book.  Both Karen and Beranton have spoken at our programs for many years.  Karen has spoken at our Superior Court Boot Camp every year since 2011.  Beranton has spoken at every litigation program we’ve held in South Florida for the past six years.  What champs!

Karen and Beranton’s expertise and ability to teach is what led Faith to invite them to write this topic for her book.  We’re reprinting it in portions on the blog, to give you a taste of what will be in the book!

The following is Part I of a three part discussion about Opening Statements, written by Karen and Beranton:

Part I:

Opening Statements

The opening statement is the attorney’s first opportunity to tell the jury what the case is about and what the attorney expects the testimony and evidence will show.  It is also counsel’s first real opportunity to establish his or her themes and build rapport with the jury.  In order for an opening statement to be effective, it is critical that the attorney has carefully prepared, planned, developed, and practiced the opening statement.  The attorney should discuss his or her theory of the case.  The statement should include all of the uncontested facts as well as the client’s version of the disputed facts.  It should be non-argumentative, logical, simple to comprehend, and believable.  In short, the opening statement is storytelling.

Opening Statement Theme

Every opening statement should have a theme.  The theme shared in the opening statement should be revisited throughout the case, and should be reinforced by the evidence.  As a result, it is critical that the attorney is well prepared and has an intimate understanding of the facts, deposition testimony, witnesses, evidence, strengths, weaknesses, and jury instructions.  This intimate understanding of the complete case will help the attorney develop the theme that will assist the jury in remembering and understanding the case from the client’s perspective.

Ideally, the theme will be one that resonates with jurors and is consistent with their existing views on how people act and what motivates behavior.  The theme should be relatable and not legalistic.  For example, a theme like  “this is a case about a defendant who made a promise, but then regretted it and is now trying to get out of the deal he made” is more effective than “this is a case about whether two parties formed a valid contract.”  Even the most complex or technical case should tell a human story.

Opening Statement Strategy

In order to deliver a case winning opening statement, the attorney should be efficient, non-argumentative, trustworthy, persuasive and strategic. As far as efficiency, jurors are often anxious to hear from the witnesses and receive evidence.  In complex cases, the jurors may have been sitting around for days listening to the lawyers dig into their personal history and potential biases.  Candidly, by the time the jury in sworn, they are tired of hearing from the attorneys and prefer to see and hear something else.  As such, it is critical for the attorney to make good use of his or her time by providing the jury with a concise story of what occurred and what the evidence will show.   Counsel should aim to present the opening statement in as little time as he or she realistically can.  Rarely is it advisable to use all of the time permitted by the court for opening.

The opening statement is not argument.  An argumentative opening statement will likely draw a sustained objection from opposing counsel, frustrate the presiding judge, and cause the attorney to become distracted or flustered.  It is also important that the attorney does not oversell the evidence or testimony.  If the attorney is unable to deliver on the oversold evidence or testimony, opposing counsel will remind the jury at closing.  It is best to under-sell and over-deliver.  Of course, the opening statement is also not merely a neutral recitation of facts – it should persuade through a clear and strategic recitation of the facts, not through argumentative rhetoric.

Counsel should anticipate the weaknesses in the client’s case and, if the weakness is admissible, volunteer the information to the jury.  It is important that they jury believes the attorney is credible and honest.  Attempting to hide the weaknesses or the damaging facts may cause the jury to think that the attorney and the client are attempting to pull a fast one.

Before presenting an opening statement to the jury, counsel should review the opening with colleagues and others with little or no familiarity with the case.  If the case is not sufficiently large to justify a formal mock trial or retention of a jury consultant, family members, friends and law firm staff can be excellent sounding boards!  Obtain feedback on the proposed theme.  Push for honest reactions; explore the listeners’ questions and evaluate the effectiveness of the approach.

Creating an Outline

Creating an Outline

Creating an outline can help you in several ways, but perhaps the most important is this: A well-crafted outline is all you need at the lectern to deliver a winning presentation. A truly well organized outline will allow you to sail through your speech without a hitch.

There are several wonderful software tools you can use to create outlines (Scrivenor, Evernote and MindMap spring to mind), but they are not essential. If you can put together an effective outline without digital assistance, do it. But don’t feel bad if you need the help. (Full confession: I’ve used these tools myself.)

The trick to creating an effective outline is to develop one that has just the exact amount of information you need – no more, no less. Put too much verbiage in your outline and you risk writing something you have to read verbatim, right off the page (as we discussed back here, reading a speech verbatim has a lot of drawbacks). Put too little on the page and you’re likely to forget some important point or other that you meant to make.

Be economical, but not stingy. Write in full sentences when you have to, bullet points when you don’t. Remember the acronym PEP: Point Explanation/Example Point.

Don’t Forget to Practice, Practice, Practice!

And, of course, rehearse. This cannot be emphasized enough. If you do not practice out loud, with your outline by your side, you will run into enormous trouble when the time comes to actually deliver your presentation. You will hem and haw, pause awkwardly or get completely lost. There is only one way to avoid these traps: PRACTICE.

Keeping up suspense … in a good way

We’re taught not to keep an audience hanging, but … well, let me tell you a story.

I once attended a presentation where the speaker used a very unusual technique in a presentation, but being the speak-geek that I am, I stashed it away and have put it to good use myself a number of times. Now I pass it along so more can give it a go — the secret is suspense.

It looked like the speaker had his work cut out for him when it was time for him to begin. This particular audience was full of members of a local chapter of the National Association of Speakers – a professional public speaker association – and we were all busy chatting with each other and catching up when his presentation began. But instead of calling for attention or announcing that he was going to begin his presentation, he began telling a very moving story. He told it well, using pauses, repetition and vocal variety to grab and hold our attention and create suspense.

We were hooked. The story was compelling, and he told it well. We weren’t thinking about listening — we were just listening. When he got to the climax of the story, he had us all on the edge of our chairs waiting to hear what happened next. Just as it seemed he was going to get to the big finish … he surprised us all by moving directly into his main presentation instead of finishing the story.

 

The verbal cliffhanger

You could hear a collective groan from the audience – we wanted to know how the story ended! But he had us hook, line and sinker. For the next 45 minutes or so we were captivated by his performance and when his speech was finally drawing to a close, he returned to his story and finished it for us. It was an emotional, powerful story and you could look around the room and see the impact it had on the audience. Even more importantly, the story he told had a direct correlation to his message, which made the emotional punch of the presentation that much more effective.

So write the word ‘suspense’ and toss it into your mental toolbox. It could come in very handy. But there are a few things you’ll want to keep in mind about getting the most out of this technique:

  1. Have a good, engaging story to tell that builds to a climax and leaves the audience desperately wanting to hear the end.
  2. Be a good story teller! Work on your vocals, your non-verbal cues, your presence and your body movement to help you tell the story well and with impact. (As I have said before, a speaker needs to look for opportunities to hone the skill of storytelling.)
  3. Make sure the story has some moral — some real-world application that relates to the purpose of your speech and helps you reinforce your message.

Once you’ve got the story, the skill and the point, you’ve won the war before the battle has even begun.

3 last PowerPoint mistakes to avoid

Final words on PowerPoint — the visual aid I wish we could live without. Check previous blogposts in this series for some help in how to have a less-awful PowerPoint experience. But even after you’ve gotten the right attitude about not using your slides in place of an outline, and after you’ve paid attention to getting the best slides in terms of text, graphics and your delivery, there are still a couple issues that can trip you up badly about integrating PowerPoint seamlessly into your presentation.

  1. Always be sure to test your slidesall of them -– as soon as you get your A/V materials ready. Project them in a large room onto a screen or the wall so you can see them as they will appear to your audience. Besides any last typos, check to see if the colors work, if the type is legible or too small, if your slides are too cluttered, etc. There’s a big difference sometimes between how things looked on your computer screen and how they appear projected up on a screen.
  2. Practice using your slides prior to giving your presentation. Integrate them into your practice sessions until that you can transition without glitches. And work out any other kinks you’re experiencing, or, if need be, re-do your slides to eliminate the difficulties. This is especially critical if you will be presenting in a courtroom. This will help make your presentation smooth and polished.
  3. Make sure you work with your slides, and finalize them, at least a week in advance. You want to give yourself time to make any adjustments necessary. Last minute changes can be difficult and, at times, expensive. Always make sure you give your slide deck to the organizers (if you aren’t using your own laptop) by the deadline they have given. It is incredibly risky — not to mention rude — to email a slide deck to the organizers on the night before a presentation or, worse, to show up at the event and hand a flash drive to the on-site person and expect them to make it all work perfectly for you.

How to deliver a less awful PP presentation

If you have been tuned in you’ve got some tips on get the most from the text and the graphics on your PowerPoint slide, even though I’m no fan of PowerPoint. But now that you’ve got some slides that are hopefully not-awful, here are considerations about how to present. This may seem like common sense, but I have seen good speakers lose major points by bad PowerPoint delivery.

 

Your audience is still out there

Number one rule: Do not, and I mean do not, deliver your presentation directly to your visual aid!

Think about it this way: When you have a conversation with a friend over coffee or dinner, do you want to be looking at the side or back of his or her head? No, of course not. Nor does your audience. Turning and delivering your presentation to the screen is a horrible habit that far too many speakers indulge. Train yourself not to do it (or skip the Power Point altogether).

Of course, if you are doing as I suggested and working from a speaker’s outline instead of using your slides as a substitute, you shouldn’t have any problem following this rule. If, God forbid, you are using slides as your speech outline, at least look at your laptop while you talk and not the screen behind you. After all, it’s not as if it were the bad old days of overheard projectors where you had to make sure they were right side up! Be grateful for technological improvements, and face forward!

 

3 (more) rules to better PowerPointing

  1. Timing, timing, timing — When using slides, always allow your audience the time it takes to absorb the impact of what is on the slide – especially when your slide packs powerful visuals. If you don’t feel like you can take that much time, then you need to cut down the number of slides you are using. The correct solution is never to rush through your slides so fast that your audience gets irritated with you. Either take your time or don’t bother.
  2. Blanks are better than mixed messages — “Blank” your screen or use empty slides when you are not talking about what is on the screen. I recommend learning how to “blank” your screen using a toggle (press on/press off) switch on your computer. Usually it is Control F5, but it depends on the laptop – ask your IT person or read your manual. It is important to blank the screen (or use blank slides at key locations) when you have moved on to a new topic because talking about one concept while another concept is up on the screen is distracting for your audience.
  3. Screen placement — Talk to the event organizers prior to your presentation and make sure the screen is off to the side and is not the center of attention. This may sound counterintuitive, but the simple truth is that the audience is there to hear you speak. You, in turn, are there to talk with them. Therefore, you should be at the center of attention. The last thing you need is a 6’-8’ screen in the front of the room, dominating the space, while your podium is pushed off to the side. Command the focal point of the room yourself.