Since leaving the bench one year ago and after nearly two decades sitting as a circuit judge, I am often asked to advise attorneys on practical tips for the preparation and presentation of courtroom arguments. Seasoned lawyers understand that judges have varying perspectives and experiences. The judge is typically focused on resolving the dispute in a fair and effective manner.
As a judge, I was frequently asked about my favored or preferred type of case; the response was easy — “a closed one.” The judge sits as the fact finder and ultimately the decider. And in state court, the judge remains the manager of a ridiculously large number of open cases.
We are fortunate to have a distinguished bench of diligent jurists, many obsessed with reading every footnote on every page that is presented by counsel. Not uncommonly, the judge will have read the motion and already decided the matter before it is even argued. That does not mean she has already made her final decision before the argument, but rather has identified an inclination and likely ruling. The argument on the motion presents the court with a chance to really test its inclination. This underscores my first point: the most pivotal factor in winning is the manner in which your pleading is crafted.
Your motion is the first document the judge is going to review and it is ultimately the basis of her inclination. With that said, a few important rules are in order.
First, get to the point. Second, keep it brief. We all remember Blaise Pascal’s statement on brevity, “I have made this letter longer than usual because I lack the time to make it shorter.” Long-winded diatribes are about the writer, whereas effective communication is about the reader. Your goal is to communicate your point. Third, avoid words that will interfere with your intended reader’s ability to absorb your thoughts. Motions containing hyperbole and personal attacks may make you feel better, but ultimately distract the reader and diminish their intended effectiveness. Is your point that there is a sleazy lawyer on the other side? Or is it that your motion should be granted (or opposing counsel’s motion denied) because of a recent opinion or key fact? Finally, resist the urge to raise every point you can raise, to cite to every case, and to respond to every argument the opposition throws at the fan. Hit your strong point and then move on.
Read in Part 2: