Bert S. Nettles is an attorney with Haskell Slaughter Young & Rediker, LLC, in Birmingham, Alabama, and can be contacted at firstname.lastname@example.org.
Forty years of practicing law has been great fun, and I am having more fun now than ever. I would like to share some suggestions for persuading judges and juries based upon my experience. For you transactional lawyers, think advocacy when I say judge or jury, as advocacy applies to dealings with the client as well. Every lawyer is an advocate, whether in the courtroom or the boardroom. Many of these tips will have relatively little to do with jury trials, as we try fewer cases these days. Most cases are disposed of on motion or through settlement. As a result, motion practice, with the attendant briefs and oral arguments, has become increasingly important.
Courtroom protocol. The basics of course include being on time (which means being ahead of time); standing when the judge or jury enters the courtroom; and standing when you address the court or jury. While addressing the court, preface your remarks with, “Your Honor,” or something similar. Never interrupt the judge, but attempt to get the last word in where appropriate. Avoid the temptation to say, “I’ll get back to that later,” and give a direct answer immediately to questions from the judge. In addition to these time-old traditions, you should be courteous to everyone, particularly the administrative staff in both the judge’s office and the clerk’s office. They can help you or hurt you.
When making your arguments, be brief and to the point. Then, sit down. If the judge says she is ruling with you, or is inclined to do so, be quiet and refrain from continuing to argue a point you have already won.
Be aware of the double standard. More is expected of a lawyer from a big city or a large firm and of a lawyer representing an insurance company or any large institutional client. Accordingly, be better prepared than your adversary.
Due diligence. When dealing with a judge, lawyer, or mediator you do not know, make inquiries. Take the time to send a quick e-mail within your firm or talk with a law school classmate. Brainstorm possible conflicts or ethical problems immediately. Seek the counsel of your partners as a sounding board. If it seems wrong, refrain from doing it.
Oral advocacy. Preparation is very important. We all remember at least one day in law school when we were called upon and unprepared. Being unprepared in court is unacceptable. Even if you are filling in at the last minute for a fellow attorney, take time to review the matter before you enter the court and be familiar with the principal cases.
If you have never met the judge, introduce yourself and your client before jumping into your argument. If possible, try to arrange to speak first. Often the judge will ask, “Who wants to go first?” So be prepared, and open with your strongest substantive argument and save the procedural arguments (i.e., statute of limitations) for last. When discussing case law, give a highlighted key opinion or two to the judge, with highlighted copies to opposing counsel. Even with opposing counsel making comments or interjecting and the judge directing questions to you, stay focused on your key points.
Written advocacy. As with oral advocacy, be persuasive and succinct. Many judges say they only read the first ten pages of briefs. Use a short but persuasive introduction explaining why your client should prevail. Use brief sentences, short paragraphs, and bullet points where appropriate. A poorly written motion or brief hurts your credibility on the legal issues, so be grammatically correct.
Anger management. Be aware you may have an angry judge or jury. Even when opposing counsel is unpleasant, do not respond in kind; when you become angry, you lose your concentration. Also, even when you have been interrupted by your adversary, try to always direct your argument to the judge.
With discovery issues, quickly explain to the judge how you diligently and reasonably attempted to resolve these issues before the hearing. Remember that judges dislike “wasting” their time with discovery disputes.
Always control your temper, and be professional and civil. If you receive an inflammatory motion or letter from opposing counsel, wait a day before responding. Letters often end up as attachments to pleadings to the court. It can be helpful and therapeutic to dictate a response, but put it aside for a day or two in order to think about what really needs to be said. Otherwise, relatively unimportant side issues can overshadow your client’s substantive strengths.
Good advocacy does make a difference.
• The Trial Lawyer: What It Takes To Win. 2006. Paperback PC # 5310357; DVD/Book Package PC # 5310358.
• The Litigation Manual: First Supplement. 2007. PC # 5310264S.
• Motion Practice and Persuasion. 2006. PC # 5310355. Section of Litigation.
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