Law schools routinely tell students to “think like a lawyer.” In the practice of law, however, it is critically important for attorneys not only to think as lawyers, but also to communicate their clients’ positions in the manner most likely to achieve the best result. Lawyers must advocate their clients’ positions effectively, efficiently, and when appropriate—emphatically. This article discusses how to communicate with the Court in a manner that will be well-received and, most importantly, persuasive. Before contacting the Court, ask yourself the following questions:
What Are You Asking?
As an initial matter, you will need to discern in an emotionally intelligent, self-aware, and professional fashion what it is that you are asking of the Court. Imagine you are the judge receiving a five-page, single-spaced correspondence. Midway through the second full page of text, you still do not understand the nature of the request. It is not only frustrating to the Court but also a disservice to your client. Avoid being the author of such correspondence by crystalizing the actual request in your mind—then ask. A simple and routine adjournment or extension request should not take the tone and length of a Shakespearean tragedy. Time is a valuable commodity. Do not waste your time, and never waste the Court’s time. Once you have identified your precise request, avoid two common but dangerous pitfalls by following the advice below.
Avoid emotional pleas. In the course of litigation, you will necessarily have differences of opinion with your adversary. Occasionally, you will have to involve the Court to bridge this gap. Do not let your emotions become a distraction. Always remember that the Court’s decision will never turn upon who sends the angrier letter. After a heated conversation with your adversary, resist the urge to send a scathing letter about a potentially inconsequential issue. Emotional, “venting,” and name-calling correspondence will often do more to damage your rapport with the judge than to advance your client’s position.
Do not ask for more than you need. If you require a one-week adjournment of a hearing or need an additional week to file a pleading and have a reasonable justification, do not request a one-month extension or adjournment. Alternatively, perhaps a recent appellate ruling may be interpreted to be unfavorable to your client’s position. The facts of your case, however, are readily distinguishable from that appellate decision. Your adversary insists that you are taking an extremist position and seeking to overrule established precedent. Do not take the bait. Rather, take the narrow position that the appellate decision does not apply to the current facts. There is no benefit in taking a broad stance on an issue that may ultimately be denied, when a narrower (more defensible) position that gets the result you are seeking for your client is available.
Once you have clarified what it is you’re asking, you must assess. . . .
Is It Worth Asking?
Gone are the days of the old adage “There is no such thing as a silly question.” It is incumbent on you as a professional to be aware that judges have extremely busy dockets that require significant concentrated attention. As a result, you should consider whether your question is truly appropriate. In the modern world of technology, it has become increasingly simple and perhaps even tempting to fire off correspondence to the Court or place a call to chambers without fully thinking through whether the request is necessary.
For example, you are appearing before a judge for the first time and you want to impress the judge with your skill and professionalism. You have conducted copious research and have become an expert in the relevant area of law while skillfully crafting your brief. Alas, your brief is complete and you are anxious for the judge to read it and be amazed. You realize, however, that you are unsure whether the Court wants a courtesy copy of your stellar brief. You contact chambers, and an unenthusiastic and perhaps moderately annoyed law clerk responds, “Have you consulted the local rules and the judge’s preferences?” The lesson here is never to ask anything of the Court (or the Court staff) that is readily available by examining a rule or the judge’s preferences. In addition to wasting the Court’s time, asking for information that you should already know may make an attorney look unprepared or, even worse, lazy. An action that impugns your credibility, even if unintentionally, is always a mistake.
Similarly, prior to raising requests with the Court, first discuss any potential issues with your adversary. If you are seeking leave for supplemental briefing or to file a brief of greater length than permitted by the rules, speak with your adversary and request consent. The Court may be more inclined to grant a request when it is submitted with consent of the parties. To put a request before the Court without first gauging your adversary’s position may be premature. Moreover, the rules in certain jurisdictions prohibit filing discovery motions without first communicating with your adversary.
Now that you have identified your question and that the relief you are seeking is worth requesting, the next inquiry is. . . .
Can the Court Grant Your Request?
There are a number of reasons why the Court may be unable to grant certain relief. As an advocate, you must carefully and strategically assess whether the Court is even able to reach the merits of your client’s claims. Below is a non-exhaustive list of potential roadblocks that may prevent the Court from granting the relief you are seeking.
- Have you explored any jurisdictional impediments to your request?
- Are you before the appropriate Court?
- Have you exhausted administrative remedies where required?
- Does your client have standing to request the sought-after relief?
- Have you evaluated any res judicata and collateral estoppel issues?
- Is your motion timely?
- Is the sought-after relief barred by a statute of limitations?
- Is there a threshold for damages in order to assert certain claims?
- Has service been properly effectuated?
Assuming the Court can give you the relief you are seeking, it is your responsibility as an advocate to communicate to the Court why it should grant the relief.
Why Should the Court Grant Your Request?
The Court and your client reasonably expect that you know every facet of your case. You have had the benefit of in-depth and continuous communications with your client about the controversy. You have culled through all the applicable authority and are prepared to advance your client’s interests.
Now it is time to decide how to raise your request. This may be, in itself, challenging. So, let’s discuss some tips to make sure that you raise requests in the best way possible.
Be punctual. Comply with deadlines, abide by motion calendars, and respect Court calendars. A failure to timely file certain motions or responses can result in a waiver of what may have otherwise been a sound defense. Similarly, when it comes to appearances before the Court, “if you are early, you are on time, if you are on time, you are late”—and if you are late, you are doing a disservice to the Court and to your client. The moments before a court appearance can be critical. Arriving early for an appearance is an additional opportunity for you to prepare the client for what to expect. Furthermore, when you are punctual and prepared for a Court appearance, the optics signal to your adversary that you are serious about advancing the litigation to successful completion. An early arrival also allows you to get to know the “battleground.”
Be prepared. Adequate preparation can take many forms. At a minimum, however, you must know the facts and your adversary’s iteration of those facts. Additionally, proper preparation means knowing not only your legal position, but also your adversary’s. Often, by the time you enter the courtroom to argue a motion, you are firmly wedded to your client’s perspective of the case. The Court, however, is dispassionate and objective. Accordingly, it is imperative that you resist the urge to take an inflexible position that does not serve your client’s best interests. For example, quibbling over immaterial facts and failing to make otherwise unavoidable concessions may work an injustice on the ultimate outcome of your motion.
Be personable. It is likely that in every courthouse across the country, there is an attorney who judges uniformly appreciate arguing before them. This attorney is typically not only knowledgeable but also personable. Be mindful that advocacy begins long before you stand to your feet for oral argument. Your every action is a communication on behalf of your client. A disheveled appearance or the rolling of your eyes in response to an inquiry from the court clerk can very well undermine the impression you make with the Court.
Be passionate. Many attorneys view the practice of law as a calling. A truly gifted practitioner is able to confidently and effectively captivate his or her audience. Generally, the most persuasive attorneys are visibly and audibly wholly invested in their cause.
A Final Note on Communication with the Court
In addition to the pointers and recommendations above, there is one final, critically important reminder: Many attorneys make the misstep of treating communications with the Court as consisting only of written and oral presentations to the judge. This is an error. Communications with the judge’s law clerks, secretaries, court reporters, court officers, and other court staff should be conducted with the same level of professionalism, courtesy, and respect as communications made directly with the judge. The judge’s staff is integral to the Court’s administration of justice and should be treated accordingly. Pertinent communication with Court staff can be a component in the effective representation of your client. Your ethical responsibility is to communicate with the integrity and candor that are manifest in this noble profession.