Making oral presentations in court

• Author: Stewart Edelstein
• Pages: 161-184

161

CHAPTER EIGHT

MAKING ORAL

PRESENTATIONS IN

COURT

This chapter discusses your oral presentations to the court in arguing

pretrial motions and making opening statements, closing arguments,

and appellate court arguments. If you prepare properly, these oral pre-

sentations can provide tremendous professional satisfaction—your only

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

a judge, and your only opportu nity to address the jurors directly.

Any oral arg ument 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 two weeks to

prepare.”

You must also deal with the stress of making 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.”

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1. HOWTOPREPAREFORARGUMENTOFPRETRIALMOTIONS

Trial court judges’ approaches to oral argument vary widely. At one end

of the spectru m is a judge who asks very few questions; at the other end

of the spectrum is a judge who peppers you with probing questions as

soon as you start your presentation, referred to as a “hot bench.” Dis-

cu ss wit h col leagu es what you nee d to k now abo ut you r judge ’s approa ch

to oral argument of pretrial motions, and find out applicable chambers

practices regarding oral argument in federal court, 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 argument, the motion has been

fully briefed. Assemble all the briefs on the issue, applicable pleadings,

exhibits, key cases, statutes and other authorities, and anything else

related to the motion. Find a time and place where you will not be dis-

turbed and focus on how to present the most effective oral argument.

You kno w that yo u do not wa nt merely t o read or paraphr ase you r mem-

orandum, which the judge ha s presumably already read—although some

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

Ask yourself: What is the procedural posture of this case? What

standard applies to the ruling on this motion? (For example, the stan-

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

standard for rul ing on a Rule 56 motion for summary judgment.) What

makes a difference in this judge’s ruling on this motion? List the key

points that you consider most persuasive to support your position.

Then, play devil’s advocate, and list the key points most persuasive

to support your opponent’s position. Determine what facts and legal

authorities provide the most persuasive authority to support each posi-

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

is of p articu lar sig nifica nce, espe cially c ases you r ely on as a c lose prec-

edent to your case.

Based on the psychological theory of primacy (what you present

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

to argue your strongest points first. What are your strongest points?

How can you present them in a way that each follows inexorably to the

conclusion you want the judge to reach? What is the first thing you

should say, after introducing yourself to the court? If you can encapsu-

late your message into one initial sentence, do so.

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