April 01, 2021 View from the Bench

Don't Throw Away Your Shot—Motion Practice in the Age of Pandemic

The reality of federal practice these days is that oral argument is rare, and trials are few and far between

By Hon. Karen L. Stevenson

Many lawyers went to law school dreaming of arguing in court—using polished oratory and poise to persuade the judge. But the reality of federal practice these days is that oral argument is rare, and trials are few and far between. Even before the coronavirus pandemic, lawyers lamented the lack of opportunity for oral argument. Because of burgeoning dockets, judges often decide motions solely on the briefing. Here in the Central District, Local Rule 7-15 allows the court to “dispense with oral argument on any motion except where an oral hearing is required by statutes, the [Federal Rules of Civil Procedure,] or these Local Rules.”

Many lawyers went to law school dreaming of arguing before a court

Many lawyers went to law school dreaming of arguing before a court

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Now video and telephonic proceedings have replaced most in-person court appearances, and there is even more emphasis on written briefing. Therefore, accuracy, thoroughness, and persuasiveness in the briefs are more important than ever.

Control How You Tell Your Story

What makes a brief persuasive? Persuasiveness is a function of two elements: structure and content. Structure, or the “architecture” of the brief, is crucial to its persuasiveness. Lawyers sometimes do not spend enough time thinking about how to structure their brief and seem to rush right into argument and case law. This is unwise and, ultimately, unhelpful.

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