The tools of the legal profession are words, and the ability to express oneself in both a written and oral presentation is essential to success. People at the top of the profession are usually there because they have the ability to clearly express themselves in all forms of communication. Any litigator who wishes to be successful must learn how to present effective oral argument to the Court. Such skills are required at many stages of a case, including pretrial law and motions proceedings, at various stages of a trial (motions in limine, arguing evidentiary matters outside the presence of the jury, etc.), in writ petitions, and on appeal. While the tips here are presented from the viewpoint of a law and motion judge, they are applicable to nearly all situations where effective oral argument is required.

My usual disclaimer applies. Nothing herein shall be construed as expressing the policy of the Sacramento Superior Court or as a local court rule; the comments are the views of only one judge.

There are times when the law and motion tentative ruling makes it clear that you are dead in the water and oral argument will serve no real purpose. There are other times where you are convinced that the judge got it wrong, at least on one point, and if you can make the judge see the error of his/her ways, you stand a good chance of having the tentative decision reversed. It is the latter situation that this article will address by providing ten tips for better oral argument.

While many, if not all, of these tips may seem obvious to the experienced litigator, these ten have been selected because of the frequency of arguments that are presented in total ignorance of these principles. Nearly every day of oral argument will present at least one attorney whose skills could be improved by acting on one or more of these tips. It is in this spirit in which the suggestions are offered to improve one's oral argument skills.

Tip 1: Be concise. Do not prepare for a half hour argument, because it is unlikely that you will be allowed to continue for so long, except in very unusual situations. Remember that only "limited" oral argument is permitted. Local Rule 3.04. Since you only have limited time, make sure that you address the important issues immediately. There is no need to waste time summarizing the facts; the Court should be familiar with them. If a fact has been misstated in the tentative ruling, point that out with the proper reference to the evidence that supports your position.

Tip 2: Have a plan. Because your time is limited, it is vital that you have a plan for your presentation. Remember that the purpose of oral argument is to try to convince the Court that the tentative ruling should be modified. Know what you are going to say before you stand up. That being said, you must still be prepared for a curve ball that may be thrown your way by the Court.

Tip 3: Avoid needless banter. Do not waste your time by engaging in needless discussion. For example, there is no need to apologize for appearing, so do not spend time doing so. If the tentative ruling is a judgment call that did not go your way, lay out your best reasons why it should. Alternatively, if the ruling has gone your way, be prepared to present a convincing argument showing why this is the correct result to counter the opposing argument (something more than "we agree with the court," which obviously not very helpful). Bear in mind that the opposing argument may have convinced the judge to change the ruling. If you were on the original "winning" side, you must be prepared to explain why that original ruling should stand.

Tip 4: Welcome (and don't avoid) questions from the Bench. Questioning from the Court generally gives you a good idea what the judge considers important. It may disrupt what you had planned to say, but you should immediately turn to the question and answer it. Do not say, I will get to it later. That is not helpful, since the judge is "there" now. When the judge starts talking you should immediately stop what you are saying. The judge is not going hear and register anything you say when the judge is interrupting to ask a question, so why continue talking?

Tip 5: Disagreement is okay. Do not worry about disagreeing with, or pointing out flaws in, the tentative ruling. The judge is not likely to be offended, as long as the point is presented in a respectful manner and tone. Remember, the judge wants to get it right - if the judge has misread a case, overlooked a statute on point, or is not aware of the latest authority, he/she wants to know about it. The judge would rather hear from you on this matter instead of the appellate court.

Tip 6: Do not lose credibility. It is extremely important to not lose credibility with the court by misstating the facts or law. Nothing can hurt you more than misquoting or misrepresenting the record or the holding of a case, or relying on authority that is no longer citable. If you have made an innocent mistake, say so, and immediately correct it.

Tip 7: Avoid ad hominem attacks. Do not personally attack opposing counsel. It is extremely distracting to the court to have open warfare going on between counsel. It certainly is not helpful to the Court in deciding the matter. If the other counsel is a jerk, rise above it. More often than not, the Court will recognize your professional stance in the matter.

Tip 8: Comments to avoid. Top on the list of comments to avoid is "with all due respect." That phrase grates on a judge the same as scratching chalk on a black board. I will let attorneys in on a secret. We judges know what that phrase means. As all of you know, its intended meaning goes something like this: "You stupid idiot. Only an ignoramus of an IQ below body temperature could come up with such a thing." A word to the wise - drop it from your arsenal of phrases used in court.

Another comment to avoid is, "As you know, your Honor." At best, it is condescending. At worst, its intended meaning goes something like this: "You are not all that bright, but we can pretend that you are for now."

Another comment to drop is "I don't understand why the Court ruled this way." The reason that the court ruled that way was because that is what the judge thinks the law and facts require. Instead, say something like this, "Your Honor, it is my position that the Court's ruling is erroneous for these reasons" and then tick them off. Most judges will not be offended in the slightest as long as the tone remains professional and respective. Remember, it is not the obligation of the court to convince the attorney of the correctness of its ruling; rather, it is up to the attorney to convince the court that the ruling is in error.

Having been a practicing attorney for many years, I understand the need for attorneys to blow off steam without being held in contempt. I will pass on a tip that all students of Professor Hogan at UC Davis received. When the judge does something incredibly stupid from your point of view and you would like to call him or her a dumb so and so, or use similar words, have your own "code." The "code" that Professor Hogan suggested was "very well, your Honor." You know that when you say "very well, your Honor," what you are really doing is calling the judge a stupid so and so. Because he or she does not know that, you can be assured it will not cause you a problem. You will feel better instantly with no risk of a contempt charge.

The first eight tips concern what you should or should not SAY. The next two tips, are very important, but for some reason are often overlooked. They concern HOW you say something in oral argument.

Tip 9. Do not whine. Do not say anything in a whining tone of voice. Nothing will make the Court tune you out more quickly than whining. If you have a point to make to show the Court the error of its ways, make it in a clear and direct, but respectful manner. Do not whine. Along the same lines, do not complain that every single case you cited in your papers is not set forth and discussed in the tentative ruling. Your papers have been read and your authorities considered. Whining because a particular case has not been cited is not helpful. If the Court's ruling appears to be contrary to controlling authority, that is an entirely different matter. Rather than complaining that a particular case was not cited, say instead, "Your Honor, the Court's tentative ruling appears to be contrary to the controlling authority on this issue, ABC v. XYZ. In that case, on facts similar to those involved here, the court ruled that . . .."

Tip 10. Be aware of your body language. As human beings we communicate not only with words but also with facial expressions and the positioning of the body. A statement can be construed to mean entirely different things depending upon the body language used. Be aware of this, and do not let your body language contradict your words. Practice your argument in front of colleagues who are asked to concentrate on your body language. You might be surprised at some of the comments you receive.

This brief column only scratches the surface of the topic of oral argument. The attempt here was to point out and hopefully correct the ten most common errors counsel make in the law and motion departments. There is a wealth of published material on the subject. Pick up one of these books and try to apply some of the suggestions to your own style. In addition to reading what commentators have to say, an excellent way to learn and improve is to watch skilled oral advocates perform. If you hear that such an attorney will be arguing a case, make it your business to be there and observe. This is the classic method of legal education learning from each other. Hopefully, having read these words you will be motivated to improve your skills in this important area.

March / April 2005