Almost every lawyer has been interrupted, sometimes even stopped mid-sentence, by a judge during oral argument. When that happens, traditional wisdom—and common sense—teaches that the most professional response is for the lawyer to stop talking and follow the judge’s direction on the point. If the judge has a question, answer it directly and succinctly. But what happens when the judge seems to have missed or overlooked essential elements of your argument or won’t let you finish your argument? What to do then? This is where it can get tricky.
You don’t want to be disrespectful, unprofessional, or rude in challenging the judge or continuing to press a point that the court has already made up its mind about. But you do have a professional obligation to make a record in order to preserve the issue, either for a motion for reconsideration or possibly appeal. Failing to make a record can have dire consequences.