|Oregon State Bar Bulletin OCTOBER 2011|
Oral argument to a trial judge offers an essential, but sometimes overlooked or minimized advocacy opportunity. Too often, this opportunity is not effectively used. Too frequently, lawyers rely exclusively on their written briefs. Too little attention is given to oral argument. This article deals with how to be more persuasive in oral argument to a trial judge.1
The following suggestions are a product of my 40 years experience as a trial lawyer and my 11 years experience as a judge pro tem, hearing many hundreds of summary judgment motions in the Multnomah County Circuit Court.
What makes oral argument to a trial judge more persuasive?
1. Focus, focus, focus. The old adage about valuing real estate is “location, location, location.” For oral argument, it is focus, focus, focus. A persuasive argument must focus on the key points and concentrate on only what is necessary. The sharper or more narrow the focus, usually the more persuasive. Focus helps the listener absorb and understand what you are saying. Keep and stay focused. Use a brief (no more than a paragraph) summary overview of key points.
2. Less is better. Abraham Lincoln said it best: “I never heard a bad short speech.” Brevity is the essence of persuasion. One of the single greatest advocacy mistakes is that lawyers say too much and either lose the attention of the judge or talk themselves out of persuasion. You will always want to say more but should discipline yourself to say less. Many lawyers snatch defeat from the jaws of victory by talking too much.
3. Concession helps persuade. Concede whatever points are obvious. It diminishes credibility to argue uphill against the obvious. Giving ground can enhance your credibility. If you argue in a way that challenges everything, you have less credibility than if you give ground and concede, particularly on collateral matters.
4. Sincerity counts. Persuasion is a product of both heart and head. Judges listen more carefully to lawyers who are perceived to believe in what they are saying. We always pay more attention to people who are sincere in making some point than to someone who does not show enough personal interest. Sincerity can really persuade, if not overdone. Show sincerity and enthusiasm for what you are arguing.
5. Do not attack your opponent. This is a waste of time, erodes your credibility and undercuts your professionalism. We all feel the need to attack, especially in rebuttal. Such attacks close down persuasion. Remember the old saying: “If you don’t have the facts or law on your side, then attack your opponent.” If you attack your opponent, the judge may conclude that you don’t have the facts or the law to support your position.
6. Do not repeat your brief. It can be dangerous to assume that a judge has both read andunderstood your brief. Don’t assume that the judge understands your brief. Remember, every judge has a heavy docket, many responsibilities and limited opportunity to study your brief. For oral argument you have the court’s immediate attention. Reshape your brief for emphasis during argument.
7. Ask if the judge has questions. This can be an effective way to start an argument, particularly if the judge does not volunteer any concerns or questions. This approach sends the strong message that you really do care about what the judge is thinking rather than what you want the judge to think. Once you learn the judge’s concern, focus your argument on those concerns. If a judge asks, you’d better answer directly. Dodging a judge’s question kills persuasion.
8. Use demonstrative evidence. We all know from jury trial work that demonstrative evidence works well to persuade a jury. This is based on the well-known concept that people learn best when multiple senses are engaged. Some of the most effective oral arguments involve one or two blowups of key points, or a lawyer making key points on a writing pad in the courtroom. If you write, be sure you print large.
9. Look the judge in the eye. You will be surprised at the number of lawyers who read their arguments. Eye contact is essential for persuasion and for holding attention. If you can’t look someone in the eye, you can’t convince that person. The corollary to this rule is do not read your argument. If you need notes, use an outline. Argument without notes is the most persuasive style.
10. Speed kills. The faster you talk, the tougher your argument is to understand. You can’t argue too slowly -- only too fast. It is important for the judge to be able to follow what you are saying. Remember, you know in advance what you are going to say; the judge doesn’t.
11. Pause and repeat. Appropriate pauses and repetition can emphasize key points and help persuade. This has to be focused on the key points and cannot be overdone. Used sparingly, this is an effective persuasive technique.
12. Speak clearly. Speak clear, plain English. Unless the use of a technical term is essential, use ordinary and concise language. Strong, single-syllable words are more persuasive than words with technical or multiple meanings.
13. Stand to make your argument. Although many judges will allow you to sit, standing when you make an argument to a judge projects respect and politeness. Standing goes hand-in-glove with passion and sincerity. Standing helps make a judge pay more attention to what you are saying. Using a lectern is fine.
These guidelines to effective oral advocacy are not rocket science. Rather, they are based on fundamentals of effective communication regardless of context. The best quote I have heard concerning effective persuasion was by Franklin D. Roosevelt: “Be sincere, be concise, be seated.”
In oral argument to a trial judge, you can enhance your reputation as an advocate. These suggestions will not guarantee a win, but they will help you persuade and educate a judge. Remember, you know a lot more about the case than the judge. You have to live longer with the outcome than the judge. Get the judge’s attention, then focus that attention on the key decision points for the result you want. The judge will appreciate your help in making a difficult decision easier.
1. For a variety of reasons, oral advocacy in an appellate court is much different than in a trial court.
ABOUT THE AUTHOR
The author is a founding partner of Portland’s Rosenthal, Greene & Devlin. A trial lawyer since 1972 and Multnomah County judge pro tem since 2000, Greene also serves as amicus curiae lawyer for the American Diabetes Association. He wishes to acknowledge the valuable input he received for this article from Multnomah County Circuit Court judges Richard Baldwin, Edward Jones, Henry Kantor, Jerome LaBarre, Adrianne Nelson, David Rees and Youlee You.
© 2011 Michael Greene