Court Appearances

• Author: Stewart I. Edelstein
• Profession: Commercial trial lawyer
• Pages: 219-288

219

CHAPTER SIX

COURT APPEARANCES

A. ORAL PRESENTATIONS

This part discusses your oral presentat ions to the court in arg uing pre-

trial motions and making opening statements, closing arguments, a nd

appellate court arguments. I f you prepare properly, these oral presen-

tations can provide tremendous professional satisfaction—your only

opportunit y on the record to engage in a back-and-forth colloquy with

a judge and your only opportunity to address the jurors directly.

Any oral argument you prepare must be cogent. Paring your argu-

ment down to its essence is hard work. As Mark Twain observed, “If you

want me to give you a two-hour presentation, I am ready today. If you

want only a five-minute speech, it will take me t wo weeks to prepare.”

You must also deal with the stress of mak ing oral presentations.

Jerry Seinfeld quipped, “According to most studies, people’s number

one fear is public speaking. Number two is death. Death is number two.

Does that seem right? That means to the average person, if you have to

go to a funeral, you’re better off in the casket than doing the eulogy.”

1. How to prepare for argument of pretrial motions.

The approaches of trial court judges to oral a rgument vary w idely. At

one end of the spectrum is a judge who asks very few questions; at the

other end is a judge who peppers you with probing questions as soon as

9781634256926_Ch06.indd 219 23/12/16 2:25 PM

220 | H  S   T  L

you start your presentation, referred to as a “hot bench.” Discuss with

colleagues what you need to know about your judge’s approach to oral

argument of pretrial mot ions and find out applicable chambers practices

regarding oral arg ument in federal court, which are available online.

Call the judge’s law clerk to find out how much time you will have for

oral argument, if you don’t know from the notice.

By the time you prepare for oral arg ument, the motion has been fully

briefed. Assemble all briefs on the issues the motion raises, applicable

pleadings, exhibits, key c ases, statutes and other authorities, and any thing

else related to the motion. Find a time when and a place where you will

not be disturbed and foc us on how to present the most effective oral argu-

ment. You know that you do not want to read or paraphrase your memo-

randum, which the judge has presumably already read—although some

judges are more diligent than ot hers. But what should you do?

Ask yourself th is question: What is the procedural posture of this

case? What standa rd applies to the ruli ng on this motion? (For example,

the standard for ruling on a Rule 12 motion to dismiss is different from

the standard for ruling on a Rule 56 motion for summar y judgment.)

What makes a dif ference to this judge in ruling on this motion? List

the key points that you consider most persuasive to support your posi-

tion. Then play devil’s advocate and list the key points t hat support your

opponent’s position most persuasively. Determine the facts and legal

authorities that provide the most persuasive authority to support each

position. Know the facts, analysis, rationale, and holdings of each case

that is of particu lar signif icance, especially cases you rely on as a close

precedent to your case.

Based on the psychological theor y of primacy (what you present

first has greater impact than what you present in the middle), you want

to argue your strongest poi nts first. W hat are they? How can you pres-

ent them in such a way that each follows inexorably to the conclusion

you want the judge to reach? What is the fi rst thing you should say after

you introduce yourself to the court? If you can encapsulate your mes-

sage into one persuasive initial sentence, do so.

If you are arguing in favor of your own motion (rather than oppos-

ing other counsel’s motion), in structur ing your oral argument, first

make the key points—with supporti ng authority—that support your

position. Second, rebut opposing counsel’s position. Third, explai n why,

considering all of the relevant factors, you win.

9781634256926_Ch06.indd 220 23/12/16 2:25 PM

Court Appearances | 221

If you are opposing a motion, start by exposing the biggest weak-

nesses in opposing counsel’s argument. Then launch i nto your argu-

ment, distingu ish the authorities that opposing counsel relies on, and

finish by su mmarizi ng why the judge should deny the motion, based

on the applicable procedural standard, the facts, the law, and policy

considerat ions.

What should you plan to bring to t he podium? At a min imum, have

ready access to the memoranda filed by both sides, copies of key cases

and other applicable authorities, and other documents (e.g., transcript

excerpts) as appropriate. You don’t want to be in the middle of oral argu-

ment without having immediate access to t he documents you may need.

Tab them as necessary so that you can locate the key pages.

What about notes for oral argument? Using the process described

above, you will distill your argument down to its essence. At oral argu-

ment, have notes to remind you of the main points you want to make but

do not write down every word you plan to say. A sentence or phrase out-

line should be suff icient. You want to make eye contact with the judge as

much as possible to convey your message convincingly and to watch the

judge’s reaction to what you are saying. If the judge appears to be nodding

in approval, emphasize the point; if t he judge is scowling, figure out a way

to get the judge to come around to your point of view. If the judge is read-

ing while you are argu ing, ask, respectful ly, if the judge wants you to wait.

How do you achieve the ability to argue w ith very few notes in front

of you? Write out your entire oral argument if you find it usefu l to do so.

Distill it down to a sentence outline or even a phr ase outline, preferably

on one page. Stand in front of a mirror. Make your arg ument. Be aware

of how often you look in the mirror and how often you look down. Keep

practicing until you look down very little. W hile you’re at it, listen to

your voice. Is it strong and convincing? A re you talki ng too fast? Are

you too meek or too strident? See Chapter 7(A), section 1, for a discus-

sion of the importance of how you present yourself to be persuasive.

If the motion is suff iciently significant, ask your colleagues to be a

hot bench for a dry run of your argument. They should know the file

and pepper you with questions. You can then workshop how to improve

your answers.

Consider bringing to court extra copies of key documents so that if

the judge does not have them accessible, you can, with t he court’s permis-

sion, hand them up, at the same time giv ing copies to all other counsel.

9781634256926_Ch06.indd 221 23/12/16 2:25 PM