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March 10, 2017 Articles

Oral Argument: Striking a Balance Between Judicial Assistance and Zealous Advocacy

By Emily R. Bodtke

One of the most exciting and intimidating experiences for a new attorney is oral argument. Oral argument requires you to articulate a legal argument before one or more judges, to understand and address their questions, and to counter your opponent’s points—all within a relatively short window of time and all without losing your bearings.

Given these challenges, it is not surprising that many attorneys fail to make the most of the rare opportunity that oral argument presents—namely, of interacting face-to-face with the decision maker in your case. Some attorneys adopt an overly combative or single-minded position that cripples their ability to engage in a persuasive dialogue with the judge. Other attorneys fall prey to the danger of conceding too much and compromising their client’s position.

One way to think about striking the proper balance at oral argument is to think of oral argument as a two-pronged mission: (1) to help the judge reach a well-reasoned decision and (2) to firmly advocate for your client’s position. These two goals do not always easily coexist, but both are indispensable for effective oral advocacy. This article discusses some helpful techniques for accomplishing both goals.

The First Mission: Helping the Judge (or Judges) Reach a Reasoned Decision
The most effective oral advocates treat oral argument as a conversation; they use oral argument to guide the judge toward a reasoned decision that favors their client’s case. In contrast, less effective advocates tend to treat oral argument as a lecture or presentation. By taking their client’s legal position for granted, they neglect the need to engage in a persuasive dialogue with the judge.          

Here are five techniques for helping the judge reach a reasoned decision:

1. Directly answer yes-or-no questions. It is extremely helpful for a judge when a lawyer answers yes-or-no-questions with a “yes” or “no” (or “I don’t know”). Trying to dodge a difficult or uncomfortable question will only make your position look untenable. Moreover, it can be extremely frustrating for the judge and can cause the judge to lose patience with you and your case. All that said, a good advocate should often follow a preliminary “yes” or “no” answer with explanation or caveat. But trying to avoid a question entirely will not help the court or your case.

2. Clarify the factual record. The judge wants to know the record as well as the attorneys do. Thus, the best oral advocates take advantage of oral argument to bring clarity to a case that may already be full of complications. This skill requires having a thorough knowledge of the factual record, being able to resolve any confusion about the fact pattern, and being able to provide citations to key portions of the record. It also entails having the candor to admit to an undisputed fact in the record, even if it’s not the best fact for your client.

3. Develop a comprehensive, yet nuanced, understanding of the legal landscape. Oral advocates armed with a thorough knowledge of the applicable law are better able to dialogue with the judge or judges about the appropriate outcome in a case. This is because judges tend to take an overarching view of the law and because clerks consistently go beyond the immediate issues in their research. By developing a broad knowledge of the law, you can more intuitively understand the judge’s perspective and more satisfactorily answer his or her questions. Similarly, by being aware of authority contrary to your position, you can prepare to answer the inevitable question about how that authority affects your case.

4. Process and address opposing counsel’s arguments. Oral argument does not occur in a vacuum. Rather, it generally occurs only after the submission of written briefs by both parties. Similarly, your turn at oral argument will either precede or follow your opponent’s. Oral argument is thus largely a reaction to arguments made in the briefing, arguments made by your opponent at oral argument, and arguments raised by the judge at oral argument. Because of this context, it is important to study the counterarguments contained in your opponent’s brief. It is also crucial to listen carefully during your opposing party’s oral argument and to the questions posed by the court. That way, when your turn comes, you are equipped to respond to your opponent’s main arguments, to correct your opponent’s misstatements of the facts or law, and to answer questions that your opponent failed to answer.

5. Articulate a reasoned path, supported by facts and law, for the court to reach the desired result. Although it can be a time-consuming and mentally demanding task, try to step into the shoes of the judge and anticipate the problems he or she might encounter in writing an opinion that adopts your proposed reasoning and conclusion. Then provide an avenue—supported by facts in the record and convincing legal authority—to overcome any anticipated objections, counterarguments, and tensions with other laws or facts.

In contrast, here are some mistakes that can detract from your ability to help the judge reach a well-reasoned decision:

1. Talking over the judge. Interrupting a judge’s comment or refusing to stop talking when a judge interjects with a question raises many judges’ ire and can undermine your persuasive capacity. At the very least, this habit will distract the judge from the substance of your case.

2. Overconfidence. Avoid assuming that the judge will take your client’s part. Even if you feel very confident about your case, take the time to consider any conceivable counterarguments or concerns a judge may have. Overconfidence can be a fatal error because it may cause you to miss your final opportunity to answer challenges leveled at the arguments in your brief.

3. Failing to recognize when a judge’s question benefits your position. Oral argument is as much about listening as it is about speaking. It can be difficult to listen when you’re focused on persuading a judge to accept a particular point, but careful listening is critical to addressing the judge’s concerns, confusions, and questions. Avoid fixating so keenly on a prepared argument that you miss a judge’s attempt to engage with you on a point helpful to your case. Practice departing from your prepared argument to answer a question and then seamlessly reentering it once the question is resolved.

4. Trying to force the judge to focus on one point when the judge is more interested in another. There is usually a good reason for a judge’s question, so it’s counterproductive to avoid the question in favor of addressing a different point. It’s also frustrating for a judge to have his or her question dismissed as unimportant. Be willing to engage on the judge’s topic of choice, even if you would prefer to discuss a different issue. Oral argument should be a dialogue—not a presentation—which means you may not get to control the whole conversation.

5. Overemotional tone. Passion is not necessarily misplaced at oral argument, but it must be carefully tempered for the audience. Oral argument entails reasoning with a judge or group of judges bound by law. Most judges do not feel free to decide cases based on their intuitive sense of right and wrong. They have to articulate carefully supported rationales for their decisions and may have to defend their reasoning against dissenting judges. That means that no matter how instinctively unjust a client’s experience seems, it is better to explain why the law supports your proposed outcome, rather than expound on the wrongs committed against your client.

The Second Mission: Advocating for the Client
While striving to help the judges reach a sound decision, you have an equal—if not more primary—responsibility to represent your client’s interests. But the duty to assist the court and the duty to advocate for the client are not always in perfect harmony. For example, you must zealously represent your client’s interests even when you know a particular position has weaknesses. When this is the case, there is always a danger that in the middle of a back-and-forth with a judge, you unwittingly concede a judge’s point and, in doing so, defeat your own argument.

Here are some techniques that can help you to avoid conceding too much and to remain true to your client’s position throughout the pressure and stress of oral argument:

1. Answer the judge’s questions, but turn the conversation. As mentioned earlier, good oral advocates answer questions straightforwardly. Oftentimes, that means acknowledging weaknesses in the factual record or in the law. But do not let a narrow admission destroy your entire legal argument. Instead, lessen the impact of an admission by identifying other facts or law that makes the admission less relevant, or by explaining why an assumption underlying the judge’s question is incorrect. Turn the conversation quickly to the strong points of your case. The challenge is to refrain from moving on so quickly that the judge feels you are ignoring his or her concerns or senses that you are trying to escape arguments that hurt your case.

2. Do not get trapped in a hypothetical question. One danger every oral advocate faces is getting sucked into a hypothetical that forces you to make damaging admissions based on a wholly fictional scenario. While many judges ask hypothetical questions to consider how a particular decision will set precedent for future cases, the attorney’s primary concern is the present case. Hypotheticals necessarily involve facts outside the scope of the present case, which means they can easily lead you down a path that is not beneficial to your client and has limited relevance to the present case. Thus, while it is important to engage with the court on hypothetical questions, it is equally important to point out where the proposed hypothetical differs from the case at hand. Resist the pressure to concede arguments based on a theoretical fact pattern.

3. Argue with passion channeled by law. As mentioned earlier, overly emotional arguments are not very effective at persuading most judges. But passion is not wholly inappropriate at oral argument. On the contrary, the most impressive oral advocates are those who argue with passion channeled by reason. This technique calls for more than speaking in abstract terms about injustice, unfairness, or harm to your client. It requires crafting a story that makes a decision against your client appear unjust—without your ever saying so. While this task is very challenging, it can bring extra power to your oral argument.

Capitalizing on the opportunities of oral argument while avoiding its pitfalls requires significant preparation, focus, and attention to tone. One way to strategize your approach to oral argument is to think about striking a balance between helping the court reason through difficult legal issues and firmly representing your client’s interests. Anyone who masters this delicate balance will undoubtedly gain a reputation as a persuasive oral advocate.

Keywords: litigation, mass torts, oral argument, advocacy, well-reasoned decision

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