At the Bench Bar Committee, San Diego Lawyers Club members are given the opportunity to attend events that provide an informal, relaxed atmosphere for members of the bench and members of Lawyers Club to meet, interact, and discuss the legal profession. The goal of this experience is to help us all understand that members of the bench are approachable people – they make mistakes, understand that you may be slightly anxious when you are arguing in front of them, and maybe even spill salad dressing on their clothes too.
Although an informal lunch may not provide the most applicable training for your career-defining oral argument, the San Diego Lawyers Club’s Bench Bar Committee has helped numerous people, including me, learn about how best to connect with the bench. Oral argument is an extension of your ability to hold a conversation – a conversation with more structure, specialized terminology, and often, the demand for persuasion. Social interaction with our esteemed judicial offers has provided me with a foundation to calmly handle oral argument, and I credit Lawyers Club, the San Diego County Bar Association, and other San Diego organizations for providing such great opportunities. Here are some guiding principles for oral argument that have come in handy:
1. Engage the judge. This is a conversation, rather than a debate. Your debate is with opposing counsel. Hopefully, you’ve persuasively presented the points in your moving papers. Speaking of your moving papers . . .
2. Do not read to the judge. To effectively engage your judge, it is ineffective to read the same statement you’ve made in your moving papers, unless the situation or the judge specifically calls for that – the judge has considered those arguments already. Try to condense your points into a one sheet outline or a series of brief sheets, depending on the complexity of your case. Brief sheets are a technique for splitting up a complex oral argument into easy references, with one brief sheet covering case law, one covering your arguments, and one covering any opposing arguments, etc.
3. Deliver your point concisely. Even when you cannot be brief in your brief, make sure that you do not include unnecessary detail that may cause the judicial officer to lose interest in your argument. Part of concisely addressing the points you want to make includes properly integrating any tentative rulings, as well as interactively listening to the questions and underlying concerns of the direction from the bench. Numerous talented practitioners stress that oral argument is dynamic.
4. Be respectful and reliable. Credibility is the essential attribute that anyone making an argument must exude to persuade others, or hold a conversation. Although your job is to advocate, you cannot afford to lose credibility.
As the new year arrives, I often find the time for reflection and come up with a resolution or two. This year, one resolution is to concentrate on staying mindful, including following my own advice and trusting the lessons I have learned through my experience. I provided the above tips because that advice reflects the ideal way of delivering an oral argument; real life may not always be so simple. If you (and I) take the time to prepare, and trust that preparation has been diligent and thorough, we will all be able to improve our conversation, both in and out of the courtroom.
Enjoy a prosperous 2020!
Phillip Stephan is an Associate Attorney at Neil, Dymott, Frank, McCabe & Hudson, APLC, and he wrote this for San Diego Lawyers Club’s Bench Bar Committee.