By Dr. Ken Broda-Bahm:
I recently had the opportunity to serve as a judge for a legal advocacy program as part of my daughter’s high school constitutional law program. In watching the students answer the panel’s questions, I noticed something I have also noticed in working with attorneys prior to oral argument: The judge will ask a question, and the response will have pertinent information but not necessarily a clear structure and purpose. They will start talking, and stop when they run out of gas. The question is used as an opportunity to address a topic, but less clearly as a chance to provide a structured answer to a question.
I will tell lawyers what I told the young students: You need to treat answers as mini-speech that prioritizes an answer. The questions are critical: For advocates, they’re an irreplaceable chance to know and address what is on the decision-maker’s mind at the moment, and that’s why a “hot bench” can be your friend. But the questions need to be addressed with focus and structure. There are a variety of rubrics you might follow, but I encourage advocates to pick a response pattern that makes sense to you and is suited to your style of argument. In this post, I’ll share one response structure that I think makes sense in a variety of situation: When you hear a question, Frame your response, then Answer the question, then Support your answer, and finally, Target it back toward your thesis. And the acronym, F.A.S.T., makes it easy to remember and apply.
Frame
Start by putting the question in context. Perhaps the most trite way of framing a question is the old standby: “That’s a good question.” Sometimes, that may be appropriate (when it is a good question), but there are other options: “That’s a central question to this topic,” or “That is a question that has been a common focus in a number of previous courts.” Your frame might also serve to put some conditions on the upcoming answer: “That is a difficult question,” or “That is a question that has more than one answer.”
Answer
Next, get to your answer, which ought to be as direct as the subject matter permits: “Yes,” “No,” or “It depends.” Even as the answer itself might carry some nuance or require some qualifications, make sure the answer itself is clear. Don’t treat it as a topic, treat it as a question. Whatever impressive rhetorical gymnastics you might be able to muster, the first thing a questioner will be listening for is an answer.
Support
The bulk of your time should be spent on support, addressing the implicit follow-up to your answer: “How do we know that’s true?” and “Why should we believe you?” This is the time to articulate the reasons, unpack the evidence, and explore the examples. The more your explanation can anticipate what you expect are the reasons the judge is asking, the more you’ll be adapting to your judge.
Target
A final step is to answer the expectation, “Where does this point go from here?” In most cases, there will be an opportunity to pivot back to your own point. End on your own ground, reiterating and expanding a theme that supports your ultimate position in the argument. This is a reminder that you’re not just there to answer questions, you’re there to advance an argument. In addition, you can also target your point toward implications, or exceptions, or to other questions which allow you to advance the arguments.
There are certainly other ways to apply a response structure. For example, the simplest might be just “Answer” then “Support.” But I think it is often important to put the question in context and to ultimately point the discussion back to your ultimate position. But in any case, the point is this: Don’t just talk until you run out of things to say. Have and follow a plan to make the most of every response.
_________________
Other Posts on Oral Argument:
- Ethos, Pathos, and Logos: Use All Three in Your Legal Writing and Oral Argument
- Practice the “Three P’s” of Oral Argument: The Example of Paul Clement
- Aim Your Oral Argument at Your Judge’s Motivating Principle
_________________