Effective Oral Argument

So, here you are. In court. Things are not going your way. The judge is just NOT getting it.

You have to do SOMETHING to convince the judge that you are right. Every time you try to tell her why you are right, she asks you a question that shows you that she doesn’t believe your position.

You get frustrated, angry, defensive. Then when all else fails ... you whine. It may sound something like this:

You: Judge, with all due respect, I didn’t get Mr. Jones’s brief until late Friday and I need time to respond.

Judge: Well, did you ask Mr. Jones for more time or file a motion for more time?

You: No, Judge, you see, my secretary didn’t put this discovery motion on my calendar correctly and, you see, well, this really is not my case, my associate has been handling this, and she’s out for an illness – having a baby – which I guess is not really an illness, but I have not had the time because I had a FEDERAL COURT deadline.

Judge: So you came here unprepared?

You: Judge, he’s not entitled to these documents.

Judge: Did you object and give reasons?

You: He’s not entitled to these documents.

Judge: So how did you respond to the discovery?

You: Judge, I gave them what they are entitled to.

Judge: It says you failed to attend the 10.1 conference. Did you attend it?

You: Judge, I had a scheduling conflict in FEDERAL COURT so I could not attend, but he’s not entitled to these documents. Judge, it’s just not right. He knows it. He knows he’s not entitled to these documents.

Judge: Well, counsel, all of your whining has not answered ANY of my questions. He has followed the rules. He’s getting the documents.

WOW! Ever been there? That’s what YOU sound like when you are there. Below are some “tips” culled and collected from numerous legal authors, which, if followed, will assist your preparation so that you can argue properly and not be required to whine to the judge. Things not to say:

“I’ll be brief.”
“It’s in my brief.”
“My secretary forgot to put this on my calendar.”
“That’s a good question.”
“This isn’t my case.”
“I’m not a bankruptcy lawyer.”
“I wasn’t at the trial.”
“I’ll get to that later.”
“It’s complicated.”
“With all due respect.”

Be prepared. Familiarizing yourself with a motion while walking from the courthouse parking lot to the courtroom guarantees an ineffective oral argument. Always take the time, well before the hearing, to review the applicable facts, law and arguments.

Be organized. Avoid fumbling for documents during the precious few minutes available for oral argument. Know the precise location of the moving and opposing papers in your file, as well as any other relevant documents. When you are arguing multiple motions, a separate file containing the relevant documents for each motion can be especially helpful.

Arrive early. The focus of your attention should not be getting to court, but on making the best oral presentation possible. You will do a much better job if you get to court early, review your materials and relax.

A good start. Describe your motion to the judge in 50 words or less. It focuses attention on what you think is important and why. It also shows that you are prepared.

Learn about the judge. Talk with other lawyers. Knowing the background, attitudes and personal style of the judge you will be appearing before will help you gear your presentation for maximum effectiveness.

Use proper names. The correct form of direct address to the court is “Your Honor,” and the third person “the Court” is also appropriate. The court should not be addressed as “Judge.” Be careful with confusing terms such as “defendant-in-reconvention” and the like. If using those terms confuses the matter, use the names of the parties.

Introduce yourself and whom you represent. The court may have a hard time figuring out whom you represent.

Listen to the question. When you don’t like the question, your natural instinct is to respond to the question you wish you had been asked rather than the one actually posed. Answer the question the judge asked.

Answer the question immediately. If you say, “I’ll get to that later,” you will irritate the judge or you will simply create a situation in which the judge tunes you out until you answer.

Answer the question directly. Do not try to rephrase the question or try to explain an answer before giving a direct response. If the question requires a “yes” or “no,” the next word out of your mouth should generally be “yes” or “no.” Of course, you can then explain or qualify your answer.

Be candid. You know your case has strong points and weaknesses. So does the judge. At times, you may have to concede a “bad point,” but you still have the opportunity to explain why that point is not controlling.

Be an advocate; follow through. After answering, return to your planned argument and make the important points you had planned. This communicates command of the argument and confidence in your position.

Anticipate the questions. As you write your outline, try to anticipate the questions and prepare your answers in a way that will make this transition most natural.

Avoid being caught in a hostile dialogue. Some judges will try to get you to concede certain points through persistent questioning. Remain polite, firm, and simply “stick to your guns” in a way that is respectful. Do not abandon key points in your argument simply because a judge asks a question that attempts to extract concessions. Try to “follow through” to the next point of your argument.

Plan your rebuttal. The mover will have an opportunity to respond to statements from the non-mover. This rebuttal should be planned ahead of time. It should briefly respond to specific points raised by your opponent and go back to emphasize the strong points of your position. Anticipate your opponent’s arguments and plan your response. This is the “sweet spot.” Use it.

Do not ask rhetorical questions, such as “Does the Court really want to …?”

Mind your image. Your goal should be to appear confident but respectful, both to the court and your opponent. Do not slouch, lean or fidget. Speak in a firm but controlled voice. And, most important, always keep your personal feelings under control. Address your comments to the bench — not to opposing counsel.

Speak audibly, clearly and at a reasonable speed. Often we become so involved in the proceedings that we begin speaking too quickly, necessitating an unwanted interruption by the judge — or more often the court reporter — asking that you slow down.

Know when to be quiet. Don’t interrupt your opponent, and never interrupt the court or try to talk over the judge when she is asking you a question.

Know when to stop. Once the court begins to rule, your oral presentation is over. Judges generally will not permit further argument, and to continue arguing makes you appear unprofessional and rude ... and desperate.

Do not repeat what’s in your brief. The court has already read it. Your oral argument should be focused on engaging the court on key issues, addressing the court’s legal or factua questions, and countering your opponent’s arguments.

Give ground when appropriate. Some attorneys feel they must defend every argument, and they do so to the point of absurdity. Such an inflexible approach weakens your case. Be willing to acknowledge obvious weak points in your argument and counter with
your strengths.

Ask to file a supplemental memorandum. If a previously unaddressed but pivotal issue comes up during oral argument, ask the court for the opportunity to file a supplemental memorandum. Although rare, courts will permit them in appropriate circumstances.

Be prepared to shift gears. You may need to make your argument flexible to the flow of what is transpiring. If you are wed to a script, your argument will be flat, mechanical and unpersuasive.

Use questions from the court to your advantage. View such questions as an opportunity to address issues of concern, and, if you are properly prepared, you will have anticipated these questions and will have formulated responses that show why the court should decide in your favor.

Don’t argue with the judge. Attempting to convince a judge that his entire line of reasoning is wrongheaded will rarely be productive. Instead, acknowledge the court’s areas of concern and demonstrate why those areas should be resolved in your favor.

Know when to quit. If you believe you have won the argument, be quiet, or you may snatch defeat from the jaws of victory. If you have lost the argument, let it go.

Re-read the briefs. This will allow you to re-familiarize yourself with the major legal and factual points of the case. Your oral argument will then allow you to state your best points more persuasively and forcefully, to clarify points you did not make so well, and to address points made in your opponent’s brief that you did not anticipate when writing your original brief.

Review the record and KNOW the facts of the case. Unfortunately you can forget the crucial facts of the case between initial review of the record, writing the brief and then having to deliver an oral argument on the same set of facts. You must be the expert on the facts.

Reread the cases relied on by each side. Make sure that the authorities relied on in your brief are still “good law” and check for any recent developments that may affect your ultimate argument. Anticipate that your opponent will do the same.

Prepare a BRIEF outline of your argument. This outline or set of bullet points should be on a single sheet of paper. You should not read from your brief, nor should you write out your oral argument in its entirety and think that you should read from it.

Customs of the Court. Although many judges will play the role of devil’s advocate and try to get the attorney to focus on the weak part of the case, some judges merely are curious about certain facts or procedural details. Furthermore, some judges are asking questions to “help you along” either by providing some structure if you seem disorganized or by “throwing a softball” so that you can get back on track.

Make it clear what you want the judge to do. You want the court to rule in your favor, but make it clear what you want the court to do in its ruling.

Make it clear what the judge did. Whether the court rules in your favor or against you, make sure that the record is clear as to what the judge’s ruling covers and what it doesn’t.

Avoid repetition, avoid repetition, avoid repetition.