Arguing Your First Motion - ABA YLD 101 Practice Series

By Michelle Denice Craig

You've written a motion and submitted it to the court. The court has set it for oral argument - now what? Preparing to argue a motion can be a nerve-racking experience. However, motion practice is an exciting and enjoyable experience if you adequately prepare for the oral argument. Over the years, you will develop a pattern for preparing to argue a motion that works for you. For now, there are a few universal tips that can make arguing your first motion a smoother, less harrowing experience. The following checklist explains some of those tips.

Read the rules. Familiarizing yourself with the local rules of the court in which you will be arguing your motion is a must. Some judges are sticklers and will follow the rules to the "T." Others are very lax. It is a good idea to know the rules and follow them so that you will be prepared no matter which type of judge you encounter. Some courts have uniform rules that apply to each court and others have separate rules for separate districts. Additionally, it is a good idea to check with that particular judge's secretary or that court's website. Some judges have developed their own rules for their particular courtroom. Those rules can make extra pronouncements about the length of the argument, the arrival time, and even the dress of the parties.

Know the judge. A courtroom is a judge's domain. Accordingly, knowing the judge is important. However, equally important is advice from other attorneys who have argued in front of your judge. Ask other people in your firm or in the legal community about the judge. Ask them if there are any dos and don'ts that you should follow. Many judges are particular about a surprising number of things. It pays to know how to approach a judge and how to remain respectful of that judge's preferences. Knowing these things can make a difference between being given a few minutes to make your point and being given a lot more time.

Review your written motion. Although it is not always the case, chances are good that if you are arguing the motion, you wrote it. However, even if you wrote the motion, you still need to read it over and over and over again. It is imperative to be familiar with your argument, with its holes, and any counterarguments.

Shepardize your cases again. The cases that you used in your motion should have been shepardized before they were used. Even if they were, you should take the time to shepardize any cases that you relied upon again. In the time that it took to submit the motion and get it set for hearing, some of your cases could have been affirmed on appeal or worse, overturned. You need to know that and address it in your argument. Additionally, if a case that is on point has utilized your cases recently in its argument, then that law should be emphasized in your argument as well.

Review opposing counsel's written motion. It goes without saying that you should be familiar with opposing counsel's argument. Familiarizing yourself means reading all of the cases that opposing counsel relies on and making sure that they have not been mischaracterized. While you are reading the cases, you should also be thinking about ways to distinguish a damaging case from yours.

Note cases that are directly opposed to your argument. Any case that opposing counsel utilized and any case that you come across that is directly opposed to your argument has to be dealt with no matter how damaging it may be to your argument. Review it and try to come up with a counterargument or a counter case. A dissertation on why the case is wrong is not necessary. However, you must be able to address it when it comes up. The best way to handle it is to address it in a sentence or two and redirect the court's attention to a point that is better for you.

Prepare your argument. After you have reviewed the written motions and the cases supporting those motions, you will need to prepare your argument. Your argument should not be a regurgitation of your written motion. It should be a concise version of your key sections. Some people take different approaches to preparing their arguments. You can outline your argument, making sure you have smooth transitions from point to point or you can write it completely out, reviewing and repeating it several times until you are comfortable. Be aware of the fact that you should be flexible when making your argument. The judge may interrupt with questions that will throw you off. Be prepared for that and answer them as best you can. Then move as smoothly as possible back into your argument.

Organize documents and exhibits. The day before the hearing you should prepare an accordion folder or a similar receptacle that includes all of the information that you will want to have with you. You should have a copy of your motion, a copy of the opponent's brief, copies of your chief cases and copies of your opponent's cases. Additionally, copies of any rules of court, evidence or procedure that you think you might need to refer to should also be organized neatly in the file. Any exhibits that will be presented to the judge should be in their own folder, marked accordingly and readily accessible to avoid looking unnerved and ill-prepared.

Observe an oral argument in front of your judge. Observing an oral argument in front of your judge can serve many purposes. You will familiarize yourself with the judge's courtroom, where to stand, and your cue as to when to start and end. Additionally, observing how more experienced lawyers interact with the judge will also give you an idea about how to interact with him or her.

Ask a colleague to listen to your argument before the hearing. A few days before the hearing, ask a colleague to give you an honest assessment of your argument. A fresh pair of ears will help identify the places that need more practice and the arguments that may be too weak to mention in the short time that you have to make your argument. A colleague will also be able to tell you about any distracting gestures or poses that you make during your argument.

Prepare the driving directions and parking directions a couple of days before your appearance. It is important to know where you are going. Preparing to argue a motion is stressful enough without being unfamiliar with where you are supposed to be. If you have never been to the court before, it is a good idea to print out the directions and drive by the courthouse a few days beforehand, noting the parking lot area (and noting which area is restricted and which is not). This way, you will know where the courthouse is and where to park and, at least, that will eliminate some stress.

Prepare your wardrobe the night before. Lay out the suit that you intend to wear the night before. Most courtrooms are formal, so a suit is a necessity. Make sure that you are rested the day of your appearance and if you usually eat breakfast or lunch, make sure to do so on the day of the hearing. Don't do anything that is out of character with your normal routine. You want your body and mind to be as comfortable as possible as you prepare.

Give yourself extra time on the day of the hearing. Arrive at the courthouse early enough to get Comfortable with your surroundings. After you locate your courtroom, find a quiet place near the room. Use that area and any extra time to go over your argument, get a drink of water, relax and enjoy your first argument – you've prepared adequately and you will do fine.

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About the Author

Ms. Craig is an associate at Jones Walker in its Woodlands, Texas office. Her practice areas include Litigation and Labor and Employment. Ms. Craig is a member of the American Bar Association Young Lawyers Division and its Litigation and Labor and Employment Law Committees.

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