Stop the Whining! Effective Oral Argument

• Jurisdiction: United States
• Publication year: 2022

Stop the Whining! Effective Oral Argument

With Judge (Ret.) W. Ross Foote

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 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 that, 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."

Things You Should Do

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...