ACCESS Online MCLE Course

DYNAMIC ORAL
ADVOCACY
By JUSTICE MAGDANGAL M. DE LEON
INTRODUCTION
This lecture will give you an overview of oral advocacy: history, nature, elements, traits of a successful
advocate, trial advocacy and appellate advocacy, preparation for oral argument before the trial courts and
other court levels, and dos and don’ts during oral argument.

The pointers in this lecture were gathered from my experience as trial lawyer for 30 years, and appearance
before the trial courts (first and second level) as well as the Court of Appeals, Sandiganbayan, and Court of
Tax Appeals, and the Mt. Olympus of any lawyer, the Supreme Court (both division and en banc).

At the end of this module, you will be able to:

• Describe the nature and elements of oral advocacy

• Point out vital aspects of persuasion as form of an effective trial advocacy
• Cite the pre-trial preparation strategies
• Identify the skills needed for appellate advocacy
• Determine various concerns regarding oral argument before the Supreme Court

Knowledge of how to prepare and actually argue before the Municipal Trial Courts, the Regional Trial
Courts, Court of Appeals, and other third level courts, and the Supreme Court is extremely valuable; it may
help the lawyers win their cases.

MODULE 1: Advocacy in General

What is Oral Advocacy?

This is the spoken side of argumentation.

What's the purpose of oral advocacy? To persuade the court that law, justice, and right favor one’s position.

Oral advocacy is primarily a performance skill. It requires the advocate to address the court persuasively
and concisely, presenting one’s case in a manner which is clear, well organized, and efficient.

In ancient times, there were no trial lawyers. There were two methods of determining guilt or innocence and
resolving disputes:

• Trial by Ordeal: Guilt or innocence is determined by subjecting the accused to painful and
dangerous tests
• Trial by Combat: Two parties fight in combat and the winner is proclaimed the right one

A trial lawyer has remained essentially the same: a substitute warrior, willing surrogate, alter ego for a
fainthearted patron, who is called upon:

• to fight for his client,

• to use his skills in his client’s service,
• to advance those arguments which his client, if given the training and talents, would advance in his
own behalf
Definition of Advocacy

1. Derived from Latin verb advocare, “to call to one’s aid.”

2. Advocate - is one who “pleads the cause of another before a tribunal.” In a larger sense, one who
“defends or espouses any cause by argument.”

3. Latin “advocatus” which signifies advocate or counsel, is the origin of the Italian “avvocato”, French
“avocat” and Spanish “abogado” which, in those languages, mean “lawyer.”

Nature of Advocacy

1. Advocacy is an art, not a science, which is a body of knowledge with definite rules and objective
standards.

2. Certain well-defined skills must be mastered, and these will involve the knowledge and application of
specific information.

3. The trial lawyer’s art is that of advocacy – of advancing a cause in his own particular way, a legal
cause in a legal setting.

4. This art presupposes knowledge of procedural and substantive law, but the emphasis is not on
science, the body of the law, but on art, the advocate’s personal skills and talents that will adorn the
body.

Distinction between advocates and office lawyers

1. In English courts – legal profession is divided into two branches, Barristers and Solicitors.

2. Two branches of the profession require not merely different but opposite faculties, which – except in
very few exceptions – cannot well coexist in the same individual.

Elements of advocacy

Three questions that must be asked in the trial of a lawsuit:

1. Can I do it? – matter of law

2. How do I do it? – matter of mechanics
3. Should I do it? – matter of judgment
MODULE 2: Traits of an Advocate

1. Desire
2. Healthy frame
3. Attractive personality
4. Intellectual capacity
5. Mental Acuity
6. Confidence
7. Combativeness
8. Courtesy
9. Power of imagination
10. Faculty of sincere emotion
11. Power of clearness and simplicity of expression
12. Sensitivity

MODULE 3: Trial Advocacy

Municipal Trial Court / Regional Trial Court / Sandiganbayan

1. Basically, presentation of witnesses and documents – not much room for extended oral argument.

Exceptions:

a. temporary restraining order / preliminary injunction (including motion to dissolve writ of

preliminary injunction)
b. motion to dismiss (including oral motion to dismiss during pre-trial or preliminary conference)
c. motion for reconsideration
d. habeas corpus
e. motion to lift order of default
f. motion for judgment on the pleadings
g. motion to quash subpoena
h. motion to quash writ of execution (including opposition to garnishment)
i. motion for reinvestigation
j. motion to quash warrant of arrest
k. motion for judicial determination of probable cause
Basic Concept – philosophy of persuasion
A conceptual approach to the phenomenon of influencing another to accept the idea advanced by you and
your client.

1. Instruments of persuasion – not only the lawyer but also the other principals identified with his cause.
All are important = client, client’s family, witnesses, who are all part of the persuasion process.

2. Subject of persuasion – Judge

a. Factors of persuasion
1. A desire to follow existing law – prepare trial briefs which formally,
decisively express prevailing law
2. A desire to reach a desired result
• don’t apologize about your case
• be convinced of the significance of the litigation and the righteousness of your
cause
• exude the attitude that reflects those convictions

Your job is to convince the court that your client ought to win, and give the court a
legally-permissible route to that result. Don’t forget the second part. You cannot win
without it.

3. A desire not to be reversed

• Let the trial judge know that you are possessed of certain characteristics:
o knowledge of the law
o confidence in your cause
o persistence to pursue litigation to an ultimate resolution
o courage to make a record

Order of proof – appraisal of evidence

Categories of evidence to support each facet of a case:

• live witnesses;
• depositions;
• exhibits.

Afterwards, do the following:

1. Determine the order of the issues to be proved

2. Determine the chronology with which each issue should be developed
3. Determine the relative importance of the evidence which support every sub-issue
4. Determine the anticipated length of each item of evidence and develop a working schedule for each
block of trial time
MODULE 4: Preparation for Oral Argument Before the Trial Courts
Preparation for oral argument before the trial courts, which is basically the same kind and degree of
preparation for oral argument before other court levels:

1. Study the entire record of the case.

2. Place the facts at your fingertips.
3. Read all applicable laws
4. Read all the pleadings filed by the parties.
5. Read the text not only of the decisions you are citing but also those cited by the adverse party to
ascertain the actual applicability of said decisions to the case at bar.
6. Evaluate the weak points of the adverse party, keeping an eye for any fallacious or misleading
arguments.
7. Evaluate your weak or vulnerable points, and study the means by which to mitigate said areas of
vulnerability (e.g., citing Supreme Court decisions providing for exceptions to the general rule;
pointing out circumstances to show that the present case is not on all fours with the decision/s cited
by the adverse party; pointing out that practical considerations or the equities of the case compel a
ruling in your favor, notwithstanding that the law is on the side of the adverse party; etc.).
8. Anticipate all probable questions, especially those not favorable to your cause.
9. Note down admissions already made by the parties in previous pleadings.
10. Scrutinize thoroughly the adverse party’s attachments to its pleadings, which attachments may
contain effective admissions which could be used against the adverse party.
11. Keep handy all exhibits, documents, pleadings, TSN, decisions, orders, resolutions, etc. which you
may use/cite/present during the oral argument to support your position or to demonstrate the
weakness of the adverse party’s position.
12. Keep the Rules of Court handy in anticipation of procedural questions.
13. Keep the Constitution/ Civil Code/ Corporation Code/ etc. handy, as the case may be.
MODULE 5: Appellate Advocacy
Court of Appeals / Supreme Court

Sometimes, a case is set for oral argument or hearing before the Court of Appeals or Supreme Court, either
motu proprio or upon motion by one of the parties.

This is a heaven-sent opportunity for an advocate to clarify his position and convince the court that his
position is the correct one, supported by the facts and the law.

In the Court of Appeals, the cases set for hearing are usually special civil actions such as petitions for
certiorari and / or prohibition, and special proceedings like habeas corpus.

In the Supreme Court, same as above, as well as petitions for review.

Ten commandments of appellate argument –from “Argument of an Appeal” by the legendary John W. Davis,
considered to be the best U.S. Solicitor General ever, who argued 112 times before the U.S. Supreme
Court:

1. Change places, in your imagination, with the court.

2. State the nature of the case and briefly its prior history.
3. State the facts.
4. State the applicable rules of law on which you rely.
5. Always ‘go for the jugular vein.’
6. Rejoice when the court asks questions.
7. Read sparingly and only from necessity.
8. Avoid personalities.
9. Know your record from cover to cover.
10. Sit down.

Importance of oral argument

a) The petition, comment or brief shows the court how to decide the case in one’s favor; the oral
argument demonstrates why it should be so decided.

b) Oral argument is the one opportunity the advocate will have to rub minds directly with those who will
decide the case.

c) Oral argument is your chance to further explain to the court in person the arguments that you made
in your brief. You can clarify the points you made in your brief, tell the court what you think is most
important about your arguments, and answer questions from the court.

Need for preparation for oral argument

a) Many find oral argument the most anxiety-producing and intimidating part of appellate advocacy.

b) The most effective antidote to destructive anxiety is confidence and the only way to achieve
confidence is through preparation.

c) If more than ten percent of what occurs during the course of an oral argument has not been
anticipated, it is a sure sign that the advocate has not done his homework.
 d) Solid preparation will allow the advocate to deal more easily and effectively with this unexpected ten
percent.

e) One can have greater confidence in following one’s instincts when those instincts have been
educated and informed by hard work and solid preparation.

Actual preparation for oral argument.

In addition to the items enumerated in II (D) above, which constitute the preparation for argumentation, there
are other things that have to be done:

a) Identify the issues in simple and clear terms.

b) Choose the style of argument you will use:

1) Fact-centered argument
2) Doctrinally-centered argument
3) Policy-centered argument
4) Process-centered argument
5) Institutionally directed argument

c) Make an outline of the issues and arguments, clearly delineating the main and subsidiary points.

d) Be thoroughly familiar with the outline so you can easily move from major headings to sub-headings
and back.

e) Keep your outline short. A few key words on different points and maybe a phrase you want to repeat
as theme of the case.

f) Do not prepare a word for word presentation; worse, do not memorize. However, memorize your
introduction so that you can make eye contact with the court. Memorize your last paragraph so that
your ending seems planned, rather than an afterthought.

g) With no prompts in front of you, go through your argument several times from memory. Work through
it without resorting to your outline or notes. This will force you to learn your argument much more
thoroughly than if you are always relying on your notes.

h) Prepare convincing opening and closing statements. Make a good first impression and a favorable
last impression.

1. Primacy: the first heard is best retained

2. Recency: the last heard is last retained

i) Create a theme that will unify the points of your argument.

• Choose a central theme to focus and strengthen your argument. If you can tie the issues into an
overriding reason that your side deserves to win, you will be able to deliver a clear and concise
message throughout the little time that you have during oral argument.

j) Lead with your strongest point rather than building up to it.

• Amplify the most important aspect of the case at the start and try to articulate the theme of your
argument in the first sentence or two.
k) Backstop your argument so that when it becomes apparent that the court disagrees with your
position about one point, you can say that even if the court does not accept that premise, you should
still prevail, on some narrower ground.

l) Whenever possible, craft your argument in such a way that you impress upon the court the idea that
you are not only correct on the law, but also seeking a just result.
• Although focused on the legal analysis, the court is aware of the need for fairness and can be
persuaded by assertions to that effect in a close case.

m) Thoroughly master everything in the record that might possibly be relevant to the argument.
• Do not rely on the précis or summary of the record prepared by another.

n) Be familiar not only with the facts contained in the record but also with the physical layout of the
record.
• Tab indexing can help in achieving this goal.

o) Verify the history of the cases on which you rely, as well as any amendments to relevant statutes,
rules, and regulations.

p) Although you researched the law at various points in the litigation, including when you wrote the brief,
you should review at least the key cases before your argument, and learn them well enough to talk
about the nuances without the case in front of you.

q) Be aware of the questions you will likely be asked. Although you will not be able to actually memorize
answers to these questions, you should know in advance how you plan to respond.

r) Be prepared for questions that range from the very sophisticated to the most basic. If possible,
present your argument to colleagues who are experts in the field relevant to the case and to those
who know little about it.
• Through constant questioning from a variety of sources, you will be able to predict a number of
particular questions or concerns likely to arise at the actual argument.

s) Recognize that around twenty five percent of your preparation for oral argument will not be put to any
apparent use.
MODULE 6: Pointers During Oral Argument
a) Always maintain deference and respect to the court.

1. The proper attitude is neither too stiffly formal nor too casually relaxed.
2. Never address the court from a seated position.

b) Always be respectful of your opponent. However, if your opponent has misstated a material fact, be
sure to correct it and to do so in a way that shows how the correct fact helps your argument.

c) Never interrupt the court. You should stop speaking, listen, think and respond effectively to the
court’s question.

d) If directed to address or abandon a particular point or line of argument, you must do so.

e) Reading to the bench from a prepared text is not likely to be the most successful method of
presenting your case.

f) Avoid personalizing the argument you are advancing.

g) Your notes or references should be available without a search that consumes time and patience and
produces irritation.

h) Notes are a crutch. Looking at the notes breaks contact and direct communication with the bench.
Avoid using them where possible.

i) Oral argument is a constant interchange of ideas between the bench and the advocate. Therefore,
you want to maintain as much eye contact as possible and remain flexible enough to engage in
dialogue.

j) When using citations, avoid elaborate analysis – keep it simple. Remember that arguments are short
and spending too much time on citations will take away from the substance of your argument.

k) Keep your presentation simple. Use short sentences, simple words.

l) Questioning by the court: hot and cold benches

• The great advantage of oral argument is the opportunity to engage the mind and attention of the
court, to be able to determine and to deal directly with those aspects of one’s position found
troublesome by the court.
• Oral advocacy at its best is not a monologue by the advocate, but a dialogue with the court.

m) Ideal bench is neither too hot nor too cold.

• The questions asked are those which the advocate has anticipated and for which he has
thoroughly prepared, through apparently spontaneous answers.

• The questions and comments from the bench are not so frequent nor so tangential as to break
the flow of the argument or interfere with the advocate’s ability to make and develop all the points
he had intended to do.

n) Rephrasing the court’s question, when properly used, gives the advocate many advantages.
 o) Know how to deal well with consecutive questions.
• Generally, the better practice is to respond first to the last Justice to address the advocate

p) The ability to “read” the court in the midst of argument is an important skill for the successful
advocate.

q) Tactical retreat as proper approach to a hostile member of the bench.

• Recognizing the expressed concerns of the court is usually an effective method of cooling off
judicial hostility before it can become destructive.

r) The cardinal rule for responding to questions is to answer them, never evade.
• When asked a question, answer it directly. When possible start with a yes or no, but if the short
answer requires a qualification, immediately follow the yes or no with that qualification.

s) The advocate must pay attention to the actions and reactions of the court as well as to his own
presentation.

t) If you are asked about a decision with which you are unfamiliar, admit your ignorance rather than
pretend that you know it.
• The court will appreciate your candor.

u) Do not postpone your response by saying “I am coming to that” or “I shall answer your question in a
few moments.”
This is likely to be viewed as a sign of disrespect to the court.

v) Though prepared with infinite care, the summary and conclusion of the argument should appear as
naturally spontaneous in delivery as the body of the advocate’s presentation.

MODULE 7 Oral Arguments Before the Supreme Court

1. Arguing before the Supreme Court, especially before the court en banc, is the ultimate challenge to
an advocate’s ability and competence.

2. The oral argument can make or unmake a case. The unmaking of a case is a certainty when counsel
shows lack of familiarity, if not ignorance, of the facts and/or the law.

3. In en banc hearings, the Chief Justice defines the issues so that the lawyers would know the focus of
their arguments.

4. In the Supreme Court, generally, no lawyer can speak unless he is called.

5. Take advantage of questions that are propounded to further support the position you are arguing.
However, make sure that the questioning does not lead you to a trap where your answers would be
favorable to your opponent’s position.

6. The challenge is how to avoid being derailed or distracted by questions that are propounded in the
course of arguments. When there are interruptions, whether in the form of questions or comments,
you must have the capability to revert to the trend of your arguments; otherwise stated, to stay on
track
 7. That is why it is better to have an outline rather than to write out your entire arguments. When you
do that, meaning, writing everything, and there are interruptions or questions, you are likely to be
unhinged or driven off the track.

8. Remember the three Cs in oral argument: stay Cool, Confident and Collected, which state of mind is
possible only if you have undertaken a thorough and exhaustive preparation.

9. Also, bear in mind the three A’s which any lawyer who argues before any court should have:
Alertness with respect to the matters being raised by the adverse counsel and Attentiveness to the
matters that may be raised by the court. Accuracy is what you are conveying to the court.

OUTRO:
That ends my lecture. I hope everything that you've seen and heard you utilize the next time you argue in
court.

Thank you very much for your attention. Maraming salamat. Mabuhay kayong lahat!