TEN DO’S OF ORAL MOTION ADVOCACY
1. Do Know the Judge and Local Rules. It is important to get some information about the judge that will hear the argument and about the rules that the judge follows in court.
2. DO Argue. Justice Brennan once said that, “My whole notion of what a case is about crystallizes at oral argument.” If a matter is worth raising by motion, it is generally worth arguing.
3. DO Have a Theme. Try to have a short paragraph in your mind which sums up the essence of your case or point. Structure your argument around that theme.
4. DO Prepare. There is no substitute for preparation. Either an abundance of preparation or a lack of preparation will be obvious to the judge.
5. DO Practice Out Loud. Many things which seem so logical and wonderful inside one’s own head somehow sound ridiculous when they are said. Try saying your argument out loud to an audience who can comment on it for you.
6. DO Use Exhibits. Judges will generally appreciate an argument which has a map or a diagram or a timetable. Those types of exhibits will help clarify and explain the issues in the case or on the motion.
7. Do Take Everything to Court. Unforeseen questions often arise and require something from the file. It is best to be able to reach into the file and produce it immediately rather than report that it is back at the office.
8. DO Answer Questions When Asked. If the judge has a question, answer it directly and immediately without hesitation. You want to address things on the judge’s agenda, not your own.
9. DO Argue the Humanity of Your Case. If there are equities in your case, include those somewhere in your argument so that they may possibly move the judge. That sense of a case’s humanity may influence a judge who is sitting the fence on an important issue.
10. Do Be Yourself. Do not try to imitate anyone. Let you real personality carry the day for you. Your sincerity and genuineness are more important than any imitation you could ever give.
TEN DON’TS OF ORAL MOTION ADVOCACY
1. DON’T Be Nervous about Being Nervous. It is natural to be nervous. However, everyone should avoid overlaying natural nervousness with a second layer of nervousness based on the inability to calm down. Just let the natural nervousness flow. It merely demonstrated that you care about what you are doing.
2. DON’T Be Dull or A “Potted Plant.” Arguments are too often boring. Try to be lively and interested so that the judges will be enlightened but also entertained.
3. DON’T Start or End on Weak Points. Try to construct your argument so that you begin and finish with strong points, thereby capitalizing on the principles of primacy and recency.
4. DON’T Speak Softly. The judiciary appreciates attorneys who stand up and speak loudly enough to be heard well and confidently enough to be believed.
5. DON’T Just read It. Try to be as note-free as you can. The oral argument is an exercise in persuasion, not an oral treatise.
6. DON’T Downgrade Your Fellow Attorney. Judges at all levels are becoming increasingly tired of acid tongue of attorneys as to their fellow lawyers. There is a difference between effective advocacy and downright nastiness.
7. DON’T Be Inflexible. Allow your argument to “go with the flow”, responding to points made by your opponent and issues raised by the judge.
8. DON’T Make the Asinine Argument. Try to avoid putting forward a preposterous position. It only causes the judge to believe that the court’s time has been wasted. It allows the opponent to ridicule your case or point.
9. DON’T Be Arrogant. Judges are becoming increasingly fatigues with arrogant attorneys. Try rather to be sincere and genuine proponent of a rightful position.
10. DON’T Give up. Although there is a time to acknowledge defeat, many judges have “reserved themselves” after hearing additional argument.