Create an Outline
Create a short outline that you can have in front of you during your argument. Nobody but you will see this outline, so write whatever you think is helpful to you. At the top of my outline, I usually write “Good morning, Your Honor. Nancy Franco for defendant Jane Doe,” to remind myself of my opening line. My outline also includes the relief I seek, the causes of action, my main arguments refuting each of those causes of action, and a page reference to the briefs. As with creating outlines during law school, the process of creating the outline for a hearing is valuable. It helps you refine your argument, review the facts and case law, and identify the strongest arguments.
Review the Judge’s Standing Order
Review the judge’s standing order to ensure you comply with any unique requirements.
Review the Local Rules
Likewise, review the local rules. For example, while one state court in Southern California may post tentative rulings the day before the hearing without consequence, a state court in Northern California may post tentative rulings by 2:00 p.m. and require counsel to notify the court of any objections no later than 4:00 p.m. that same day.
Review the Docket
Know the procedural posture of the case. The quickest way to do this is by reviewing the docket. The docket can usually be viewed on the court’s website. You should also confirm that the hearing is still on the calendar and where the hearing will be.
Check for Tentative Ruling
Depending on the nature of the hearing and the particular judge before whom you are appearing, a tentative ruling may be issued. Most courts that issue tentative rulings do so the day before the hearing. Check the judge’s standing order and the court’s website to determine whether a tentative ruling will be issued and, if so, obtain a copy. Tentative rulings are very helpful because they let you know how the judge is inclined to rule. If the tentative ruling is favorable to your client, you may want to “submit on the tentative,” where you agree with the judge’s determination and do not request oral argument at the hearing. If the tentative ruling is not favorable to your client, you may want to prepare to argue particular points to convince the court to rule in your favor.
Research the Judge
If you have time, observe hearings in the judge’s courtroom before the date of your hearing. Where is the courtroom? Where is the docket posted? Where are the parties standing? What type of questions is the judge asking? What is counsel doing effectively? What annoys the judge? When are trial dates being scheduled? If you cannot visit the court beforehand, ask your colleagues for insight regarding your particular judge.
Determine whether you will need to pay any filing fees. For example, if the appearance is ex parte, you will need to visit the filing window before the hearing and pay the filing fee. Find out ahead of time whether the court accepts cash, check, or credit cards for the filing fee.
Depending on the court, there may be metered parking, street parking, or a private parking lot. Be prepared with coins, cash, your checkbook, and a credit card. I learned this the hard way. I once went to a hearing in the middle of nowhere. There was metered parking, but the meters accepted only coins. Coins! There was street parking, but it was only one-hour parking. There was also a private lot, but it was $12, cash only, and of course I had only $7. Luckily, I arrived early enough to drive around the area, find an ATM, and get cash.
Find out where the courthouse is and how long it will take to get there with traffic.
What to Take with You
The following is a list of items I recommend having on hand:
• several business cards
• your outline
• copies of the briefs (I usually take my copies of the briefs with handwritten notes and highlighting for my own reference, and two clean copies of the briefs in case the judge or clerk requests a copy. Depending on the type of hearing, you may need additional copies for filing, to serve on opposing counsel, or for the clerk.)
• several pens (Don’t be that person at the hearing without a pen or with a pen that runs out as the judge is assigning dates and deadlines.)
• tentative ruling
• driver’s license or other photo identification
• necessary funds (for filing fees, parking, copies, etc.)
• the court’s address and driving directions (in case you get lost and have no cell phone reception)
• the clerk’s phone number (in case you’re running late because of a flat tire, a train delay, etc.)
When You Arrive
Arrive early. Give yourself plenty of time to get stuck in traffic, get lost, have trouble finding parking, drink your coffee (some courts require you to throw it away before entering the courthouse), stand in line to get into the courthouse, and find the courtroom.
Check the docket. The docket usually posted on the door of the courtroom. Look for your case and note the number of your appearance. Write your docket number on your business card, along with the name of the party you represent. For example, “Defendant Jane Doe # 4.”
Turn off your phone before going into the courtroom.
Check in with the court clerk. When you go into the courtroom, give the clerk your business card with the name of the party that you represent. If a tentative ruling was not available prior to the hearing, ask the clerk whether the judge issued a tentative ruling. Some judges print the tentative rulings and place them on a table near the front of the courtroom rather than posting them online beforehand.
Sit down in one of the pews on either side, but do not sit in the front row. It is reserved.
Listen. While you are waiting for your case to be called, pay attention to the other proceedings. You will get a sense of the types of questions the judge may ask you, the judge’s preferences for how questions should be answered, whether the parties sit or stand, where the parties stand, etc.
Be confident and speak clearly. When your case is called, walk up to the appropriate side, and state your appearance, i.e., “Good morning, Your Honor. Nancy Franco for defendant Jane Doe.”
Be formal and professional. Address the court, not opposing counsel. When addressing the judge, refer to her or him as “Your Honor.” Stand up straight and remember to speak clearly, slowly, and confidently. Avoid nonverbal responses, such as shaking your head, and incoherent responses, such as “uh-huh.” Listen to the judge’s question and answer it. Do not simply move on to the next bullet point in your outline.
Take notes regarding the court’s ruling and any dates and deadlines the judge assigns. At the end of the hearing, the judge may ask, “Notice waived?” You should respond, “Notice waived,” if you do not need formal notice of the dates and deadlines the judge read aloud.
Be polite. After the court’s ruling, say, “Thank you, Your Honor.” Take all of your belongings and tuck in your chair. A judge once commented to me that she pays attention to whether the parties tuck in their chairs and how rude it is when they fail to do so.
Take advantage of the opportunity. Following the hearing, take a moment to meet opposing counsel if you have not done so already. If there is anything pending, such as discovery responses or depositions to be scheduled, use this opportunity to discuss those outstanding issues.
Next steps. Once you leave the courtroom, send your supervising partner—and perhaps also the client—an update on the outcome of the hearing. Calendar any relevant dates or deadlines.
Keywords: litigation, Judicial Intern Opportunity Program, JIOP, court appearance