January 27, 2017 Practice Points

Hacking the Short Hearing

By Fentrice D. Driskell

Every litigator has encountered it—the dreaded hearing set for ten minutes or less. The necessary implication of such hearings is that you will have only half that time to present your argument and win over the judge, and perhaps even less time than that depending on the number of parties involved. The situation becomes even more pressurized when the factual background or legal issues relevant to the motion are complex, and when you have to deliver such a performance with your client present. Never fret, the Minority Trial Lawyer Newsletter is here with our "hearing hacks" to help you shine in even these most confining of circumstances.

1. Know Before You Go
Research your judge in advance. This includes making sure that the motion is of the type that the judge permits for short hearings. If it is not, you will only serve to embarrass yourself in front of your client and annoy the judge. If the court wants courtesy copies of the motion, response, and supporting authorities, send those well in advance. Additionally, educate your client on what to expect at the hearing. Does the judge typically rule from the bench, or will the matters be taken under advisement? Is the judge known for "splitting the baby" for example, in discovery disputes? Knowing this information will allow you to discuss with your client what a "win" might look like, even if it means that you will not get an immediate ruling or total relief. Furthermore, you should ask others about their experience in front of your judge. Should you expect a hot bench with lots of interruptions during your oral argument? Will the judge be prepared and have read everything? Knowing this will help you determine the best structure for your argument.

2. Keep Your Argument Simple
Remember, your goal for the hearing is to win the discrete issues raised in the motion, not the entire case. It can be tempting to bring up outside issues to get the court to weigh in on those as well. And why there might be tactical reasons for doing so, those reasons must be evaluated against the competing risks of potentially causing the main issues to get lost in the fray, running out of time, and losing credibility for attempting to raise matters that were not noticed for the hearing. Furthermore, It will not be possible to recount the full factual background of a complicated case. Instead, with a streamlined approach that focuses on the limited issues and most salient facts addressed in your motion, you can . . .

3. Make It Short
Consider the following formula: Objective + Opportunity = Outcome. First, clearly state your client's objective in filing the motion. "Your honor, we are seeking Acme Corporation's records regarding x, y, and z because we need those records to prove a, b, and c."

Second, educate the judge regarding the opportunity that the court has to help your client achieve the desired result. Avoid convoluted recitations of multiple case names, but bring any particularly strong authorities to the judge's attention. "The court has the authority to grant my client's motion based the Roadrunner v. Wile E. Coyote decision, which provides precedential guidance for the very relief we seek." If there are no supporting authorities on point, draw upon your best persuasive authority, public policy, or even common sense. Additionally, make thoughtful use of body language. For example, if the other side argues that your client seeks overbroad relief, consider placing your hands in front of you with palms facing at shoulder width apart, and then bringing them in closer together at key moments when you argue that the relief sought is limited. At times when it would make sense to gesture towards your client, do so.

Last, explain how the requested outcome impacts the case overall. "Finally, your honor, the records sought will help the parties narrow the issues in the case, which we believe will conserve the court's resources and move the case towards the summary judgment stage more rapidly." The court will appreciate having an understanding of how the relief sought fits in with the rest of the case, both substantively and procedurally.

In sum, prepare, keep it simple, and provide the judge with a clear path to granting the relief sought by your client. Once you cover all three elements of the formula, you can expound upon one or two key points that further support your argument. With any luck, you'll win the day, your client will view you as rock star, and you can prove once again that you don't just play a lawyer on TV.

Fentrice D. Driskell is a Shareholder with Carlton Fields and a Member in the Section of Litigation.


Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).