Oral argument is pinnacle of advocacy. It is often your last chance to influence how your client's case will turn out. You can be creative, audacious, persuasive.
But there are some things you just can't do. Here's a great example of what can happen when you have completely misjudged your case, your audience, yourself... Follow this link to the 7th Circuit oral argument page for the case of U.S. v. Johnson. Then follow the hyperlink "Oral Argument" to the audio file to see just how bad things can get.
This 2005 case has become a real life classic on how not to do oral argument. After counsel's attempt at oral argument, the case went on to be decided; the full opinion appears at 123 Fed.Appx. 240, 2005 WL 589976. Listen to the audio and then ponder what must surely rank as one of the great legal understatements of all time:
" A recent Supreme Court case makes it irrelevant whether Johnson's consent for the dog sniff was voluntary. See Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005) (holding that no legitimate privacy interest is implicated by allowing a drug-detection dog to sniff the exterior of a vehicle during a lawful traffic stop). . . . At argument, Johnson could not distinguish his case from Caballes, and neither can we." [Emphasis added.]
Of course, at argument it was not Johnson who was arguing his case - it was his attorney.