Many years ago, when I was still a rookie lawyer, I went to court for an oral argument. It was my very first time, and I remember the day clearly.
I wasn't the lead attorney in that argument, but I had helped the lead attorney–let's call him Mr. White, bankruptcy partner at a Manhattan Big Law firm–prepare for it.
Mr. White was a seasoned attorney at that point, and he loved to give me (and all of the novices) bits of sage advice on what to do in various stages of litigation and how to do it well. Everything we did to prepare for that argument–reading through the motion papers, preparing a hearing binder, creating an argument outline–was at his earnest direction.
But the biggest lesson I learned that day didn't come from Mr. White's words...it was something I observed in the hot seat moment in front of the judge.
I watched as As Mr. White smoothly started in on the main points of our client's argument, and then I noticed his hands were trembling. This was shocking to me because Mr. White had so much experience and we had prepared so thoroughly! But that was the moment I realized that no matter how much experience or preparation one has, oral argument is always nerve wracking.
That was a key moment in my career, and it was actually relieving to realize that the nerves would never go away. We won the argument for our client that day, but by the end it had dawned on me that there must be more to winning an oral argument than just prepping the way that Mr. White taught me.
After many years of winning (and sometimes losing!) oral arguments, I have some insight on what it is that cinches a win. Of course, I still carefully read the papers and make outlines and binders, but that is not what really makes a difference in my opinion.
Here's what does: my three keys to winning an oral argument.
1. Make sure your written argument is well-written and comprehensive.
Your written argument is your first chance to persuade the mind of your judge (or, most likely, the minds of her clerks) so if you lose her attention while she is reading you are already starting behind (especially if your adversary DOES have a well written document).
You should also make sure you cover every element of your argument, and don't rely on the opportunity to present additional facts or case law at the hearing (or in a sur-reply) because many judges do not allow you to supplement your written briefs.
Sadly, I have seen too many lawyers skimp on this part–out of laziness or a dislike for writing–and it is a huge mistake. In one case (where I argued the motion but did not write the underlying papers), I was scrambling before the hearing to fill some some factual holes in the legal logic that really should have been addressed in the written argument. As the arguer that day, it made my job much more difficult (although I managed to win the argument anyway employing the next two keys I discuss below).
2. Research your judge.
This one takes not more than 5 minutes but will give you so much benefit. And it's super simple: the night before your argument "google" the name of your judge (if you don't know her already) and take a look at her education, training, and judicial experience. Just those bits of information will help you anticipate the judge's style and think about the doctrines that will be most persuasive to her. (You can also ask your colleagues for their impression of the judge and her style, but I think knowing the details above are so much better for your planning).
For example, in the case I mentioned in #1, I researched my judge and saw that prior to the bench she had spent a decade as a litigation partner at a white-shoe law firm in Manhattan. I knew immediately that this would be an academic oral argument, so I prepared myself by reviewing the facts in analogous case law and making sure I knew where key facts were cited in the papers. In another case, I researched a judge and saw she came to the bench after being a law secretary for a judge. So I emphasized "saving judicial resources" in my argument.
This key requires some mental flexibility so you can change your approach according to which judge you appear before. But it is the most effective way for you to persuade each particular judge. And your job, after all, is to persuade the judge (and not just to argue in the way you think everyone should argue).
3. Use your intuition.
This is probably the hardest key to master. Your intuition is that little voice inside (or maybe it's just a feeling) that tells you what is the right point to emphasize, which is the right demeanor to take, and when is the right time to stop.
Teaching you how to use your intuition is nearly impossible; it is something you will start to recognize over time.
To illustrate, I'll share another example from a recent argument I won. While I was explaining the primary legal argument on one particular point, I noticed the judge's nod to me and I immediately knew: she agrees with our position. So, instead of carrying on and boring her with the secondary and tertiary arguments, I wrapped it up and sat down (because I have also seen lawyers lose an argument by talking too much). Sure enough, I was right and the judge ruled in my favor on that very point.
In the heat of oral argument, there are myriad moments where you have to make a split second decision on what to say next. Your intuition will help you decide, and the more you trust and follow it, the more you will be able to use it in future argument.
These 3 keys are just a few of my insights into mastering the art of legal argument making. I would love to know your insights too, so leave a comment and tell me how you ensure a win at oral argument.
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