Professor Harpaz

The Supreme Court

Fall, 2006

Instructions for Oral Argument

A. General Instructions

1. There will be two class meetings for oral arguments. Each student will have a role in each of the two meetings either as an advocate or as a judge. All of the briefs will be distributed to each member of the class shortly after I receive them.

2. Each case will be argued in the Moot Court Room. Each case will be argued before a bench of three or four Justices including students assigned to that role. I will serve as Chief Justice for each of the arguments. Prior to the argument, the student Justices should don robes available in the Jury Room.

3. When the Justices enter the room for the oral argument, the advocates will stand and remain standing until the session of the Court opens with the traditional opening: “Oyez, oyez, oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.” I will then announce, “You may be seated.”

4. At the conclusion of the arguments in each case, I will announce from the bench: “All rise. The Court is now in recess.” Students should remain in the room so that I can address other matters related to the remaining assignments. The students who presented their oral arguments should see me after class to arrange for a time to watch the recording of their oral argument.

B. Instructions for Justices

1. All Justices will be given black robes to wear during the oral argument. The robes will be available in the Jury Room immediately prior to each oral argument.

2. The student Justices should prepare for the oral argument by reading the decision(s) below, the briefs, and relevant precedents. The Justices should prepare relevant questions in advance so they can participate actively in the oral argument. Possible question types can be identified by rereading the handouts on oral argument. By asking questions, you will assist the advocates in the presentation of their arguments. No one wants to present an oral argument to an inactive bench.

C. Instructions for Counsel

1. The Petitioner will sit at the counsel table to the left as you face the judge's bench and the Respondent at the counsel table to the right as you face the judge's bench.

2. Each advocate will have 20 minutes to present his or her oral argument. Signs will signal that 10 minutes remain, 5 minutes remain, 1 minute remains and time has expired. Petitioner is not permitted to reserve any argument time for rebuttal. In presenting your oral argument, remember Supreme Court Rule 28.1: "The Court looks with disfavor on oral argument read from a prepared text."

3. After the Justices are seated on the bench, Counsel for the Petitioner should rise and move to the podium, but remain silent. When the bench is ready for oral argument to proceed, I will announce: "We will hear oral argument now in ________ v. ________. Mr. _______, you may proceed whenever you are ready." The Petitioner should then commence his argument.

4. Counsel should begin to speak by reciting "Chief Justice and may it please the Court." During the argument, counsel should refer to the Chief Justice either as "Chief Justice," "Chief Justice Harpaz," or "Your Honor." The Associate Justices will use their own last names and should be addressed as "Justice," "Justice _______," or "Your Honor."

5. The Petitioner should begin his argument by a brief introduction which should include the issue before the Court. This should be followed by a very brief description of the major facts in the case. I recommend no more than 6 sentences worth of facts. At the discretion of the Court, the Court may ask counsel to skip a recitation of the facts. This is likely if your factual recital goes on for too long.

6. After the facts, the Petitioner should introduce the major points of his argument very briefly. Try not to have more than 3 major points. This should be followed by a discussion of the first of the major points. The Petitioner should use oral argument to emphasize major arguments and major precedents. It should not be used to summarize your entire brief. You should prepare to be flexible in your presentation since you are likely to be interrupted frequently by questions from the bench. For this purpose, you should prepare an outline of the points that you have to support each of your main arguments. The outline should consist of a very short summary of each point of law, the facts in the record, if any, you want to emphasize that support the argument and the names and holdings of any cases that you want to rely on to support each point in your argument.

Please don't prepare a complete text of the main parts of your argument. Only prepare an outline of the points you want to make. This will allow you to remain flexible about expanding and contracting your argument to adjust to the barrage of questions you're likely to get. It will also reduce the chances that you will read your argument.

You also need to prepare a closing line to use when your time is close to expiring. It should briefly reiterate the outcome you want the Court to reach. You will only use this closing if you manage to time the ending of your argument so that you recite your closing line prior to seeing the card telling you that your time has expired. However, if the card telling you that your time has expired is shown during a response to a question or at any point in your argument, you should say either “I see my time has expired, may I briefly conclude my answer?” or “I see my time has expired. Thank you.” If you ask for additional time, keep it very brief and conclude by saying “Thank you.” After you complete your oral argument, you should return to the counsel table and sit down.

7. The Chief Justice will then announce "We will now hear from Mr. _______." Counsel for Respondent should then rise and move to the podium.

8. Respondent does not begin by giving a recitation of the facts since that job has been performed by Counsel for Petitioner. Respondent begins by describing the major points he intends to make during oral argument. Just like Petitioner, Respondent should use oral argument to emphasize major arguments and major precedents. Just like Petitioner, in preparing to present an oral argument, Respondent should follow the instructions in Paragraph 6 above.

9. Counsel should dress appropriately for the oral argument.

10. All oral arguments will be recorded. Each counsel will review the recording his oral argument with me at a time to be arranged.