Oral motions argument

Once upon a time, it was normal for trial lawyers to argue motions several times a week.   We used to sit in courtrooms for hours, drinking in the atmosphere, listening to our colleagues and adversaries present their positions, waiting for our cases to be called.  We learned which tactics worked, and which did not.

We came to know judges without having tried a case in front of them. Some were easy to read.  A raised eyebrow meant get on track.  A grimace meant cut to the chase.  Others perfected the art of stone face.  Or in some cases acted the opposite of how they felt - smiling as they prepared to pulverize you.

The most common motions involved discovery fights - who could get what document, what where why when and how.   Judges came to despise most of those motions because they so often generated into mindless bickering.  This was too bad because especially in cases against big corporations, there was real stonewalling and hiding of documents going on.  Luckily the judges for the most part, could tell the squabblers apart from the cases that deserved a strong ruling.

When I worked for Tom Chambers (now Justice Chambers of our Supreme Court), I was in court every week.   Tom's assistant Sheila (Jeff called her Sheeera Princes of Power), would take Cristina in her baby carrier, sit it down in her little alcove, and watch her for me until I got back.  Anytime the defense wanted our client to be examined by a medical defense doctor, it was my job to resist it on constitutional grounds.  I don't think I ever won one of those motions.  But I believed that Tom was right and was happy to argue them as a matter of the principle.

Nowadays, in the larger county courts, about the only motions that are orally argued are those that can result in a case getting dismissed.  The stakes are higher and everything becomes more nerve wracking.

I created the following list of tips several years ago.  It was published in our trial lawyer news paper.  I'm pretty sure it is a good list, because I saw photocopies posted on the walls in certain judge's courtrooms.  Here you go:

  • Pay homage with a formal greeting and introduction
  • Before launching into argument, ask the court if there are any particular questions it would like addressed.  If so, answer those questions before you do anything else.
  • Be courteous and respectful to all participants
  • Don't interrupt anyone
  • Be direct
  • Listen closely to and take cues from any comments made by the judge
  • Don't ramble, yell, or say mean things to adverse counsel
  • Maintain eye contact with the judge
  • Put the motion materials in a separate file/binder and leave everything else at counsel's table
  • Make some sort of outline
  • Have a law reference cheat sheet available
  • Speak persuasively
  • Obey time requirements
  • Reserve time for rebuttal
  • Don't roll your eyes when it's the other side's turn
  • Bring your client if they would like to come and introduce them to the court
  • If it helps, use strong demonstrative aids
  • Take one of those little paper cups of water with you to sip just in case your tongue gets tied and you need a moment to gather your wits
  • Don't read your motion
  • Find a way to lighten the atmosphere while not making light of it
  • Appear confident and look your professional best
  • Enthusiasm will help
  • Beat the adverse party to the punch - deflate its best arguments
  • Don't argue the kitchen sink
  • Don't argue with the judge

If you have another tip, let me know and I'll add it to this list.