This is the fifth in a series of articles on arguing pre-trial motions.
DEALING WITH THE OPPONENT
The best advice for dealing with your opponent is to be respectfully aloof. Do not argue directly with opposing counsel or interrupt during her argument. Don’t display personal anger or indignation, except during the occasional discovery motion when her behavior merits it.
Be careful of the opponent who tries to get your goat. Don’t be the first to blow up. Judges hate lawyers at each other’s throats. Especially when tension builds, speak to your opponent through the judge. Think of the process as a two-sided triangle.
Don’t interrupt opposing counsel even if she’s playing fast and loose with the facts or law. When opposing counsel engages in sloganeering, take the high ground by stressing the facts in your presentation.
Another technique that adds impact is citing the other side’s declarations, and using their language against them. “As the defendant admitted…”
Finish well, for the Law of Recency tells us your last words are what people will remember. Your conclusion doesn’t have to be long, just memorable. Focus on the essence of your key arguments and tell the judge what you would like her to do. Judges appreciate lawyers who, when they have “x” points to make, attend to those points briefly and then sit down.
Before sitting down, however, make your mark. Even if you sense that the judge has heard enough, don’t just gather your papers and shuffle off to your seat. Instead, be ready with a brief wrap-up, a pearl of wisdom that sums up and highlights your one or two strongest arguments. It might be “preserve the status quo,” “give the parties their day in court,” or “many
material facts in dispute.”
Memorize your conclusion, so you don’t get lost in your notes. Look the judge right in the eye and finish strong, confident, and affirmative. A “thank-you” at the end is a nice touch. Pause before you sit.
If you sense the judge’s sentiments lie with your opponent, it might be wise to finish with an offer to the court to furnish supplemental factual or legal authority. This tactic could buy you time and the opportunity to be more persuasive later.
If the judge rules from the bench, make sure you understand the ruling. Ask for any needed clarification, but don’t just reiterate your same old arguments. Judges don’t like advocates who can’t take “no” for an answer.
On the other hand, some judges dodge the “N” word, saying instead that they are “inclined to rule” a certain way. Deciding whether or not to try to dissuade the judge at this point is a tough call, because any sign of disrespect can hurt you, not only with the rest of this case but with future motions and cases.
When the judge rules from the bench, cast your emotions aside (think Mount Rushmore) and concentrate on what you’re being told. If the ruling consists of more than a simple “granted” or “denied,” write down the details word for word. Later, check with the clerk to assure that you both recorded it accurately.
If you are the moving party, consider drafting the proposed order and including it in your papers. Many jurisdictions require that you do so. A proposed order will focus the judge’s attention on what you want her to do and make her job easier.
If you find yourself with no proposed order, or the judge has modified it in her ruling, you and your opponent must decide who will write the final order. Weigh issues of cost, time, control, and influence. Whoever drafts the proposed order must send it to the other side for approval. If the other side drafts the order and sends it to you for approval, don’t just sit on it. Judges dislike lawyers who delay and obstruct by not doing their jobs in a timely manner.
In most instances, a judge will decide your motion on the spot (and either inform you of the decision then or advise the clerk to inform you later) or by the end of the day. Motions taken under advisement are usually decided in a week or two, so after two or three weeks without a decision, telephone the clerk to inquire politely, unless the court has indicated a longer time
If you lose, weigh the alternatives of moving for reconsideration, filing a writ, or filing an appeal. It helps to know the judge and the appellate court’s predilections before making that decision. You might win an initial decision, for example, but realize the judge’s reasons for ruling your way will not stand up on appeal. You are then in the delicate position of deciding whether or not to ask the court to modify her reasons.
Asking her to do so runs the obvious risk of urging her to reconsider her ruling as well. That could be bad.
Try your hand at I Object Again!: Criminal, my second online Qstream evidence course. Go to www.QStream.com, sign up, and, over the course of a month or so, two questions will appear in your email box every few days. You can practice making rulings and sharpen your evidence knowledge. It’s fun, educational, and free.
Tim Hallahan is Director of the Trial Advocacy Program at Stanford Law School, a judicial education attorney with the Administrative Office of the Courts, a national CLE speaker, and cofounder of The Hecht Training Group, a litigation skills training firm (http://www.hechttraininggroup.com). He also serves on the ACBA CAAP Advisory Committee and chairs the ACBA Communications Advisory Committee.