How to argue

I have spent what cumulatively seems like years sitting in courtrooms waiting for my case to be called. Other than the one unfortunate incident involving playing "Candy Crush" on my iPhone and the bailiff, I always watch and listen to attorneys arguing their case. I have witnessed arguments ranging from the magnificent to cringe-worthy. From these experiences I have gleaned some practical ideas on how to argue, and not argue, your case.

Know your audience. If you are familiar with a particular judge, tailor your argument to her specific style. One judge may prefer an interactive give and take with counsel while another has already reached a decision and does not want to hear much from you. Craft your argument to each judge's particular likes, dislikes and idiosyncrasies. If you have never appeared before the judge, ask other attorneys about the judge (or see if the Daily Journal has profiled the judge). Their advice can be invaluable.

Recognize the judge likely has a full calendar and your motion is probably not the most important or interesting matter before the court. Time is a judge's most precious and limited commodity and so it is vital to use your time wisely. Know what you plan to say in your first few sentences. Devote the first minute of your argument capturing the judge's interest so that she wants to listen, really listen, to what you have to say. Consider two scenarios.

Judge: I will now hear defendant's summary judgment motion in Smith v. Jones.

Attorney: This is a summary judgment motion brought by defendant in Smith v. Jones.

Hearing this opening, the judge immediately starts thinking about the next motion or what he may have for lunch.

Compare another beginning of an argument:

Attorney: This motion presents a unique and dispositive issue of first impression.

This opening conveys that this is not yet another run of the mill motion, but presents an important, and interesting, question for the judge.

Use concise, normal, and common sense language. Sir Edward Coke's advice from 1616 still rings true: "He that busily hunteth after affected words, and followeth the strong scent of great swelling phrases, is many times at a dead loss of the matter itself, and so abandon colorful language and long words: To speak effectively, plainly and shortly, becometh the gravity of this profession."

If you are raising an issue with no clear answer, recognize that you may be presenting the judge with a difficult problem to solve. Don't just dump the problem on the judge - be a problem solver. Give the judge a practical and fair path to solving the problem, which by the way, resolves it in your favor. Judges are busy and usually appreciate any assistance you can offer.

Listen, and I mean really listen to the judge. The judge may be explaining, or at least strongly hinting, her thinking on your motion. Adapt your response accordingly. If the judge's comments point to a favorable ruling, follow her lead, even if it is for a reason completely different from what you argued. Do not insist on making your predetermined points simply because you spent an hour preparing your argument.

If, before you utter a single word, the judge is agreeing with your position, agree with her in the least sycophantic manner possible. A good rule of thumb in such situations is to sit down and shut up.

In addition to listening to the judge, observe his body language. If the judge is leaning forward on both elbows as his face develops a red hue, you probably should change your approach.

If the judge asks you a question, answer it immediately and directly. It doesn't matter how inane, irrelevant, or simply crazy the question is. The judge still wants an answer. Answer it as best you can and then diplomatically return to your argument.

Attack opposing counsel's argument, not opposing counsel. Personal attacks are unprofessional, distract the judge from the merits, and usually send a message that your legal argument is weak. Such attacks are also risky. I recently watched one attorney accuse opposing counsel of making blatant misrepresentations. After listening to this litany of alleged bad deeds, the judge interrupted and said: "Mr. Jones has practiced before this court for many years and has always been honest and straightforward. This court trusts his word." Mr. Jones could barely conceal a well earned smirk.

If you need to make a record or preserve an issue on appeal, do so, but diplomatically. Do not say: "Judge, you need to state your reasoning so I can challenge it and get it reversed on appeal."

Be candid with the court. If you cannot answer a question, say so. If you must make a reasonable concession, make it. An attorney's most precious attribute is credibility. Don't lose it by shucking and jiving.

Winnow and concentrate your argument to make it short, concise, and persuasive. Eliminate weak arguments. If you cannot win on your best argument, you are not going to convince the judge with your weakest one. Motion practice is not a debate where your goal is to win points. Your goal is to persuade the judge that ruling in your favor is the correct result. That's it.

A great argument has been called logic on fire. While that may be a high mountain to conquer, good preparation and technique are within your reach.