This article is written by Jeeni Thirumalanadha Siva Seshu pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com.
The advocate’s advocacy effort on behalf of his client culminates in the oral arguments. Oral argument before any appellate level court is nothing more than an attempt by the advocate to persuade the court to understand the case from the advocate’s perspective and to provide the court with information necessary for the decision-making process. A formal and ritualistic dialogue between counsel and the court is used to accomplish this. It is not a debate between counsels or between the bench and counsel.
This article is an attempt to put forth the golden rules that are to be followed for maximum impact in court proceedings at the time of final arguments in oral advocacy.
Importance of oral advocacy
During oral argument, the advocate must have a clear idea of what he must accomplish if he is to win. The purpose of the brief, according to Karl Llewellyn, is to “offer the court something that it can lift, verbatim, into the opinion taking care of all prior authority, phrasing the whole satisfactorily, and applying it to the case before the court.
The oral argument has the following important purposes:
- To provide advocates with a unique opportunity to interact with judges and participate in decision-making.
- To assist clients in having their concerns addressed in court.
- To effective decisions and facilitate decision-making among the judges.
- To make it easier for the public to understand the judicial process.
- To establish professional expectations and encourage advocates to be more disciplined.
- To promote public respect towards the courts and the judicial process.
- Winning the case; and
- To assist the court in reading the brief.
Legal provisions relating to pleadings
Pleadings are the backbone of the legal profession. It is the foundation stone upon which a party’s case is built. A party’s case must be laid out in the pleadings. Furthermore, relief cannot be sought on reasons not stated in the pleadings. Immaterial, obscure, or confusing matters should be avoided, and pleadings should be appropriately framed. It consists of charges and counter-allegations made by one side and refuted by the other. Etymologically, it refers to a formal statement made to state the cause of action or to establish a defence against the plaintiff’s case.
In Deoki Nandan vs Murlidhar 1957 AIR 133, 1956 SCR 756, it was held that a finding cannot be sustained which is based on no pleading and no evidence.
According to G.C Mogha, “Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer.”
- Rule 1 defines pleading.
- Rule 2 lays down the fundamental principles of pleadings.
- Rules 3 to 13 require the parties to supply necessary particulars.
- Rules 14 and 15 provide for the signing and verification of pleadings.
- Rule 16 empowers a Court to strike out unnecessary pleadings.
- Rules 17 and 18 contain provisions relating to the amendment of pleadings.
Judicial interpretation on pleadings
In order to maintain the efficiency of pleadings, courts have gone on to provide some interesting principles that must be followed while pleading in a courtroom.
- In the case of Kedar Lal and Anr. Vs Hari Lall AIR 1952 Cal 176 the Calcutta High Court in contention with section 12 of Limitation Act commented that “it is the duty of the parties to state only the facts on which they rely upon their claims. It is for the Court to apply the law to the facts pleaded.”
- In the case of Gouri Dutt Ganesh Lall Firm v. Madho Prasad, Privy Council Appeal No. 5 of 1942 (From Patna: Patna Appeal No. 9 of 1939) Lord Porter in Appeal held that “the law of pleading may be tersely summarized in four words”; “Plead facts, not law.”
- In State Of Madhya Pradesh vs Ram Prasad 1968 AIR 881, 1968 SCR (2) 522 the Supreme Court Of India in a Criminal Regular Appeal Case held that “a mixed question of law and fact, however, should be specifically pleaded.”
- In Union Of India vs Sita Ram Jaiswal 1977 AIR 329, 1977 SCR (1) 950, the Supreme Court of India in a Petition of pleadings under Section 70 of India Contract Act,1872 Case held that “a point of law which is required to be substantiated by facts should be pleaded with necessary facts.”
- In the case of Udhav Singh vs Madhav Rao Scindia 1976 AIR 744, 1976 SCR (2) 246, the Supreme Court of India in this election petition said that the term material fact means “All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts.”
- In Virender Nath Gautam vs Satpal Singh & Ors on 8 December, 2006, the Supreme Court of India in a Civil Appeal held that, “The phrase ‘material facts’ may be said to be those facts upon which a party relies for his claim or defence.”
- In Virendra Kashinath Ravant And … vs Vinayak N.Joshi And Others on 11 November, 1998, the Supreme Court in a Civil Appeal Justice Thomas J. held that “The words “in a concise form ”are definitely suggestive of the fact that brevity should be adhered to while drafting pleadings.”
Points to remember for impactful oral pleadings in the court
The advocate could use the judge-centred approach. On behalf of his client, the advocate must say whatever he wants to the court. The following are the six most important points to remember when preparing effective court pleadings:
1. Preparing for an oral argument
Whether preparing for a non-dispositive or dispositive pretrial motion, a trial motion, or an appellate argument, the advocate must be well-versed in the subject matter of the argument. Abraham Lincoln once said, “Give me six hours to cut down a tree, and I’ll spend the first four sharpening the axe.” The point is clear. The time spent completing a task should be far less than the time spent preparing for that task.
The strategies listed below can be used as part of the preparation for oral arguments.
2. Revise the briefing
While updating the cases he uses, the lawyer should double-check the research to ensure that the law has not changed since the written document was created. However, in legal practice, it is critical to keep the law up to date until the argument is presented.
3. Understanding the procedural norms of the courts
The advocate must have a basic understanding of the procedural standard or standard of review that the court will apply to the case and must memorize that standard. In criminal cases, he must follow the Criminal Procedure Code of 1973, and in civil cases, he must follow the Civil Procedure Code of 1908.
4. The cause of action and subject
The advocate needs to revise the theory of the case and the subject in preparation for oral argument. The case theory shows the legal grounds for winning a customer and shows the overall plan to convince a judge or jury that the argument of the advocate is ‘right.’
By running parallel to the cause of action, a subject should collaborate with it. The subject gives the court a reason to rule in his favour. The subject, for example, is simply the “moral of the story “or” the lesson that the author wants readers to take away from the story.”
If the arguments are not “fit” in the case or the subject, the advocate must adapt his theory and subject to reflect the law and the facts properly.
5. Prioritize the most important issues to address
Since there is limited time for an oral argument, the advocate cannot make any arguments in the brief. He must therefore select two or three strong, case-specific arguments.
An essential argument can be;
- A winning argument in order to win the case.
- An argument that the other side is expecting to make in order to win the case is an important issue that the advocate must overcome.
- An argument for which the judges are particularly interested or have questions.
The advocate must focus on the most important issues in supporting his oral arguments when identifying the essential arguments. The lawyer must identify and point out which facts strengthen or weaken his case. Facts that strengthen his case should be highlighted by mouth while recognising and neutralising weak facts with other information that makes them less significant.
6. Prepare a general overview
The advocate shall prepare a written outline by means of a written brief, evidence or record, and law. The outline is both a systematic tool and a checklist that covers his main oral arguments. His oral argument should not be a mere copy of written submissions, but the outline should be sufficiently flexible to enable him to adapt to different oral argument conditions.
The outline must be in the form of bullet points. It must not be a script or a lengthy outline. A lengthy script may prevent advocates from engaging in an effective conversation with the judges.
A simple outline of one or two pages may be prepared by the advocate to quick reference at the time of oral arguments. To avoid rearranging the pages, staple them into a file folder.
The best outline structure for each argument is one based on the legal analysis paradigm:
(1) Start with the conclusion;
(2) Outline the relevant law succinctly and persuasively.;
(3) Apply the law persuasively to the facts—emphasize positive facts while downplaying the significance of negative ones; and
(4) Re-examine the findings. Include the most important legal provisions, facts, and policies in this structure to make the argument as convincing as possible.
7. Create a questionnaire
The advocate must prepare a series of questions that the judges may ask during the argument. Begin with simple questions like the ones below:
- What is the review standard?
- What rules of law should this court follow?
- What is my most compelling argument?
- What is the strongest argument of my opponent’s counsel, and my weakest argument?
- What is my best case and how can I distinguish the best case of the opposing counsel?
Practice is one of the most effective tools for preparing for an oral argument. By practising oral arguments in front of others, we learn how different audiences may perceive our arguments differently, and we can receive feedback on our theme, arguments, and style.
The judges may be of “hot” bench — judges who ask many questions — or “cold” Bench who, if ever, rarely interrupt. It will help us face any kind of bench if you practise “short” and “long” versions of our argument.
The structure of oral arguments
1. Opening submission
The judge’s first impression is formed by the opening argument (s). To prove his client’s rights and pleadings, the advocate must provide a clear, concise, and legally sound introduction to the case.
A sentence must be the opening submission, which summarises the oral argument and shows the order of progress of the argument. The opening submission shall cover the statements to be made, the claimed relief, the positions to be asserted, and the order of issues.
Be always ready to summarise the facts, including some citations to the evidence and documents concisely and persuasively.
Summary of the facts after the opening submission but before the argument
The facts should be discussed first as a summary following the opening submission but before the argument. The goal is to present the legally relevant facts in a convincing but concise manner. It is more important to move on to oral arguments rather than spend too much time discussing the facts.
Key facts integrated into the opening submission, before the request for relief
Before submitting a request for relief, key facts can be provided. The advocate must “summarise the case in one or two sentences and explain why [he] should win.” These facts should include his main character, the conflict, and the proposed resolution. The facts should elicit an emotional response as well.
Key facts integrated into the opening submission
The ability of an advocate is measured by how well he incorporates a key fact, or two into the reasons why his client is entitled to relief.
The argument follows the opening submission and possibly a summary of the facts. Unless there is a threshold issue that must be addressed first, the advocate must organise the argument first by issue, and then within an issue, beginning with the client’s strongest argument.
Begin the argument with affirmative arguments about why his client is correct on an issue. Then, address the flaws in his opposing counsel’s argument.
The advocate must adhere to the outline he created. Fill in the outline with relevant legal and factual information. The outline must be adaptable; a good outline should enable him to move quickly from one point to another.
Only those precedent cases relevant to his client’s case must be discussed in detail by the advocate. He must be ready to explain to the court how the case relates to his client’s case.
The advocate can use a “signpost” If the judges’ questions take the argument in a different direction from what he had planned, be flexible, and transition to meet their needs. Examples of signposts include “Turning to the second issue . . .” or “Moving to my third point . . . .”
4. Closing submission
The closing argument, which is the judges’ final impression before an advocate rests their case, brings the case to a close. Finish the argument by telling the court what the client is asking for and why the court should grant it. Finish with a sentence or two summarizing the argument and asking the court for a specific ruling.
Things to be kept in mind while answering the judge’s questions
An oral argument is not a presentation, but rather a conversation between the advocate and the judge(s) who will decide the matter. The major way in which judges participate in the discussion is by questioning the advocate. The judges utilise questions to assist clear up confusion, highlight key points, and communicate about the case with one another. As a result, the advocate must be prepared to address all of the judges’ inquiries directly, clearly, and persuasively.
1. Stop speaking when a judge begins to ask a question
Humans dislike interruptions in regular talks, and we want to finish our thoughts before giving the floor to another speaker. However, pausing immediately when asked a question serves two purposes:
(a) It shows respect for the court, which improves the professional credibility of the advocate and
(b) It gives the advocate a chance to listen and hear the question and to identify what issues the judge is concerned about most.
As a result, the advocate must maintain eye contact with the judges and watch for nonverbal cues that indicate when the judge intends to ask a question. Wait for the judge to finish the question before responding.
2. Be attentive to the judge’s question
Advocates often fail to listen to the question and finally answer a different question. Using active listening techniques, an advocate can listen more effectively. Make direct eye contact with the judge who is asking the question. Stop thinking about what you just said or what you wanted to say next and concentrate on the question. Be in the present moment. It is appropriate to ask for clarification if you are perplexed by the question. “I’m sorry, My Lordship,” you could say. I don’t understand the question. Could you please repeat it?” Alternatively, you could try restating the question based on your understanding.
The following are the different types of questions that may encounter at the time of oral arguments from the judges.
- If the judge questions you about the facts in the evidence or record, you should be able to accurately cite the evidence or record where the information is found.
- Judges may inquire about how precedent applies to your client’s facts or the scope of legal principles.
- Because judges are concerned about the consequences of their decisions, the advocate should address any hypothetical question directly and honestly, as well as assist the judges in understanding the decision’s parameters.
- An oral argument gives the judge time to receive clear answers to pressing questions; the judges may ask questions regarding the arguments of the opposing counsel.
For instance questions like, “What about the argument that the appellant raises . . . ?” or “How do you respond to the other side’s assertion that . . . ?”
These questions will be designed to elicit the flaws in your argument, and you should be prepared to respond with answers that address those flaws while returning the conversation to your affirmative arguments.
- Judges are interested in how their decisions will affect society. So be prepared to answer questions about the policy implications of the advocate’s position.
- Judges will occasionally ask questions that are unrelated to the case at hand in the opinion of the advocate. Try to answer those questions politely and completely and quickly transition back to the points he (advocate) wants to make.
3. Answer the question as directly and accurately as possible
The advocate must give a direct answer to the question, show respect for the court and explain the answer briefly with necessary law and facts.
When the question has been answered, don’t wait until the judge permits you to proceed. Don’t ask the judge if the question has been answered. Simply return to your argument.
1. Eye contact
If the advocate makes eye contact, the court remains involved and concentrates on the argument more easily. Eye contact improves the credibility of the advocate with the judges
2. Speaking pace
Focus on pauses to keep a rapid speaking pace under control. If the advocate tends to speak quickly or at a high rate, he can write “pause” or “slow down” at the top of the outline to remind him to do so. Speaking too slowly, on the other hand, is less persuasive than speaking at a moderate pace, according to research. The advocate must ensure that he speaks enough for the judges to hear him.
3. Vocal inflections and hesitations
This argument must be made by the advocate as truth, not his view. Any oral supporter can avoid powerless language, but the practice is necessary. Be especially careful about and eliminate hesitations such as “um,” “uh” or “like.”. Hesitations are not deliberate pauses that can be used to underline a point. Rather, they are vocal interjections that tend to irritate most audiences.
4. Body language
Even if the argument of the opposing counsel is substantially stronger, the advocate must maintain positive body language. The lawyer should avoid doing anything that could distract the judge from hearing or showing negative emotions to the judge or adversary. Self-doubt has a tense posture. Eliminate hand gestures distracting or enforced. Be aware of the expressions on your face.
Things to avoid at the time of oral arguments
The negative mannerisms that affect the delivering the oral argument and which are to be avoided are the following:
- Playing with a pen or with keys,
- Flipping pages on the podium.
All of the above actions distract the judges.
Overcoming anxiety during oral arguments
It is very common to have anxiety while attending oral arguments for the advocates especially at the initial stages of the profession. The oral argument anxiety or nervousness can influence the overall oral argument.
So, the following are the important hacks that can be followed to overcome the anxiety at the time of oral arguments:
- Being confident in your argument can help you deal with anxiety. The amount of time and preparation that the advocate put into writing the brief should infuse confidence during oral arguments.
- Know the laws of the land and be thorough with the applicable provisions.
- Learn to handle the opposing counsel’s strong points and counterclaim them effectively without any pauses.
- Familiarizing with the court and the courtroom in which the advocate will argue. This involves knowing about the judge(s) in front of whom the advocate will be arguing. “Ask other lawyers about the court’s customs and the judges’ habits,” to know the judges’ psychology during oral arguments.
- Create an outline of the argument. Create two outlines—a long outline, if the judge(s) have very few questions, and a short outline, if the judge(s) have a lot of questions.
- Nevertheless, the main mantra to get rid of any fear is practice! The more they practice, the more comfortable the advocate will feel at the time of presenting the argument.
From the above brief explanation rules and relevant provisions it is clear that (1) pleadings should state facts, not law; (2) the facts presented in pleadings should be material facts; (3) pleadings should not state evidence; and (4) the facts in pleadings should be stated in a simple manner. Before allowing a party to modify his pleading, the following factors must be considered: first, whether the modification is necessary for determining the true matter in contention; and second, whether the amendment can be granted without causing unfairness to the other side.
The art of oral advocacy is not a simple thing to learn overnight, it requires a great degree of practical expertise to have impactful oral arguments. There is no secret formula to master oral arguments. One masters this by virtue of experience and hard work. Develop good communication skills and public speaking skills to avoid anxiety in oral arguments.
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