Ten Tips from the Bench: Motion Practice Oral Argument

1. Ask for it. First and foremost, if the local practice is not to permit oral argument of motions as a matter of course, be proactive: Move to allow oral argument in your case. Be prepared to explain why oral argument will be helpful. For example, many cases involve technical matters or complex issues that can be explained more efficiently if the lawyers had an opportunity to interact with the Ccourt at oral argument.
2. Know the judge. If possible, observe the judge conducting arguments on motions in another case or ask other lawyers about the judge’s conduct on the bench during oral argument. Does the judge ask a lot of questions? Does he or she interrupt the lawyers? Is it likely he or she will have read the briefs prior to argument? Not only will this preparation be helpful in presenting your case, but it will afford a comfort zone of familiarity when it becomes your opportunity to argue.
3. Pay attention to the judge. By listening to her questions and comments and observing his or her body language, you should be able to identify the judge’s concerns about the case. Avoid the temptation of becoming so focused on what you want the judge to know (which is probably amply covered in your briefs) that you ignore signals from the judge as to what he or she may wish to learn about the case or what is preventing the judge from ruling in your favor. And, of course, when the judge agrees with some point you have made, stop talking—go on to something else.
4. Be prepared: the basics. Arrive punctually and appropriately dressed. Know the record, the facts, and the law. Rely, where possible, on authority from your jurisdiction. In federal district court, the primary authorities are usually the U.S. Supreme Court and your district’s circuit. Particularly where your circuit has not produced cases on point, citations of other circuits and fellow district court judges within your circuit are helpful.
5. Tell it like it is: the law. Do not misstate a holding of an opinion or unfairly stretch the significance of its dicta. If a case exists on point that may be harmful to your side, deal with it up front. Do this even if your opponent may have missed it. Do not assume that the judge will not know the case or be too busy to find it. Even if he or she fails to do so, the judge’s smart law clerk will. When that happens, the court will reach only one of two conclusions: You were either careless, or disingenuous.
6. Tell it like it is: the facts. The fastest way for an advocate to lose credibility—and perhaps the case as well—is to embellish the facts or otherwise be disingenuous in referencing the record during argument. Don’t do it.
7. Do not offer an oral playback of your written brief. Use your oral presentation wisely. Present your argument in a fresh manner. Emphasize the points that are important or explain the difficult concepts. Don’t rehash your brief.
8. Do not attempt to cover it all. Oral argument is not a law-school exam, where you may get some points by indulging in the hypothetical world of arguendo or providing a laundry list of alternative arguments of diminishing persuasiveness. Rather, you should offer your one or two strongest arguments (and then simply suggest that your brief contains alternative reasons for reaching the same result).
9. Do not waste your allotted time. Most courts allot precise time limits for oral argument. Skip whatever is unnecessary. Avoid using your time to summarize the facts. If the judge asks a question, respond directly. Do not say, “I will get to it later.” Your time may run out when “later” comes. Don’t read excerpts from your brief or extensively quote statutes or rules. Don’t offer citation references, unless the court requests them. However, be prepared if the judge asks to see the authority: Be able to cite a case or statute, refer accurately to a matter on record, and have copies of opinions or statutes available.
10. Do not belittle your adversary. Aggressively or sarcastically demeaning your opponent for making an argument that lacks intellectual wattage may be tempting. Resist the temptation. Counter your opponent’s argument, but stick to the facts and law. You can assume that the court is, or will become, aware of intellectual deficiencies of your opponent’s presentation and deal with it in an appropriate manner.

Conclusion

Where you can demonstrate that oral argument on a motion will be helpful to the court, do not hesitate to ask for it, even in jurisdictions where oral argument is not routine. At the same time, be aware that a careless or less than professional presentation could doom your client’s chances for success.

Keywords: litigation, pretrial practice and discovery, oral argument, litigation advice, judge, briefs

Marvin E. Aspen is a U.S. district court judge for the Northern District of Illinois.

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