A possibly helpful list, from California Court of Appeal Justice John Shepard Wiley Jr., who served many years on the L.A. Superior Court, and who before that was my colleague at UCLA School of Law. Keep in mind that some of these have to do with the practices of the L.A. Superior Court (our local trial court), but most apply more broadly.
- Learn what you can about your judge. Judges are people, with worldviews and pet peeves and all the rest. Consider tailoring your presentation to your audience. But do not pander. (“I understand the Court has a collie. I have two!”) When in doubt, err on the side of formality and convention.
- Straight away, summarize what action you want the court to take. The introduction next should present the heart of your argument. This is the most important part of your brief. Keep editing until it is fine and concise. Your conclusion should briefly reiterate the result you urge.
- Lead with your best and most important argument. In the opposition and the reply, however, track the moving paper’s organization, so readers easily can follow the debate.
- Focus on legal authority. In state court, stick to published state cases on issues of state law. If a statute is decisive, anchor your argument in the statutory words. Put “policy arguments” last, or skip them. Trial judges often regard them as arguments of last resort: signs you have no favorable statutes or case law. But when distinguishing unfavorable precedents, show why it would be inadvisable to extend inapt precedent to this different situation.
- If there is an important and troublesome case, identify it and distinguish it as best you can. Ignoring a case is unwise: they will notice. Never try to trick opposing counsel or the court. That is poison.
- Never fudge a holding. The other side will catch you and make you pay. Don’t give them this opportunity to damage your credibility. Be candid when a case is merely analogous rather than directly on point. Explain the differences and why the authority still applies.
- In opposition, respond to every argument and case in the opposing brief. In reply, do the same. Ducking a point makes readers conclude you have no good response and should lose. If a point is insubstantial, dispatch it swiftly but do not ignore it. Don’t add new evidence or a request for judicial notice in the reply, where the other side has no opportunity to respond. Don’t exceed page limits.
- Be concise. Edit. Then re-edit. As Fred Astaire said, “Get it perfect. Then cut two minutes.”
- Attack the argument, not the person. Forcefully attacking an argument is good. (“This argument makes no sense.”) As for opposing counsel, however, kill them with kindness. (E.g., “my colleague,” “my friend,” “misplaced” or “incorrect” or “erroneous” rather than “absurd” or “misrepresenting” or “bad faith” or “misleading the court.”) This is especially true if opposing counsel is calling you names. Abusive opposing counsel give you a splendid opportunity. Don’t stoop: make the contrast in professionalism obvious. Be the lawyer your mother wanted you to be. The court may well notice and remember. When publicly on the attack (and in tense private negotiations), try referring to the opposing party or client rather than directly to opposing counsel; being less direct can avoid triggering adrenal glands.
- No footnotes. Persuasive argument is linear and compelling. Footnotes are tangential and distracting. Judge Posner writes that footnote material peripheral to the argument can be deleted; if important it can be worked into the text. (Many judges do use footnotes themselves, but they will not fault you if you do not. Other judges will simply rejoice in your lovely prose.) Using footnotes to cheat on page limits is discreditable.
- If the motion is of a routine form (like a summary judgment motion), spend minimal time describing its nature. Avoid boilerplate. No block quotations. Elmore Leonard told writers to “try to leave out the part that readers tend to skip.”
- Avoid exclamation points, jargon, acronyms, or abbreviations (unless everyone already knows the abbreviation, like “FBI”). It is fine to shorten a name in a clear way (“Wingnut National” or “the bank”) but it is aggravating to have to search back in the brief to recall what “WNCU” or “MHNB” might be. Avoid words you have never heard anyone actually say, like “therein” or “hereinafter.”
- Minimize adjectives. Unadorned statements are powerful. Let readers draw their own conclusions and choose their own adjectives. Show, don’t tell.
- Take care on details. Use pinpoint page cites for every case. Do not tolerate grammar, spelling, or style errors. Follow the California Style Manual in California state court. (For instance, see rules 4:28.3 and 4:28.4.) When you have achieved the stature of Judge Posner, then you may indulge your contempt for style manuals.
- Exhibits: use tabs, so readers can find material easily. Online, upload each exhibit separately, because there are no convenient tabs.
- Do you even need oral argument? If the court posts a comprehensive tentative ruling, consider whether oral argument will be productive. Should you contact opposing counsel and submit on the tentative?
- If you do appear for oral argument, prepare, prepare, prepare. You (or someone) wrote the brief a while back, but the judge may have been poring over the cases only seconds before taking the bench. Be ready.
- Start your show right: when the court calls for appearances, state your name distinctly and with brio, and identify your client. Please don’t begin with a mumble. The cliche about never getting a second chance to make a first impression is tired but true. If the motion is important, appear in person and not on the phone, for it is important to watch your audience carefully. Do not expect anyone to email or post a written tentative ruling you are not there to receive in person.
- Lead with your best and most important argument. You might get only minutes.
- If there is new authority, print out and highlight at least three copies of the new case: one for court, one for opposing counsel, and one for you. Give it to opposing counsel well before you begin your argument.
- Listen carefully to what the judge says. These words are precious: they are windows straight into the mind of your decisionmaker. Respond to that content. Answer questions directly. Dodging them is counterproductive. Begin with a plain yes or no, if possible, and then explain.
- If the judge issues a written tentative ruling, thank the court for this effort (especially if it is against you). Ask for a brief recess to study the tentative carefully and, if it is against you, to locate its central weakness. Concentrate on that linchpin rather than on disputing every point, start to finish.
- Never interrupt the judge. If the judge interrupts you, immediately stop speaking, listen carefully, and respond to that point. Do not interrupt or address opposing counsel. When your colleague has finished, stand and ask, “May I respond?” Comments or questions to opposing counsel are improper, unless the judge calls for an informal and off-the-record working session. Some judges want you to stand when speaking and prefer “Your Honor” to “Judge.” (Local rule 3.95 used to require this usage.) Err on the side of caution until the judge says otherwise. Avoid “with due respect,” which many judges perceive as insulting. “You guys” can be perceived as sexist and inappropriate to this formal setting.
- Smile and be friendly, even if the judge is a dragon. The general rule is to retain your emotional cool. After considerable experience, you may decide passion can be effective in the right situation, but this tool is sharp and can create self-inflicted wounds. The persona of “calm, reasonable, and friendly” is almost always better.
- Speak slowly. This can take a lot of practice. So practice. Do verbal tics plague your courtroom speech? Um? Like? You know? Eliminate these. With feedback and sustained training and effort, you can do this. Demosthenes perfected his oratory by speaking with pebbles in his mouth. Public speaking is an ancient art form. Study this heritage.
- Hire a court reporter. If you don’t think the hearing is worth that cost, your appellate lawyer later may berate you and your trial judge may draw a silent and adverse inference.
- Visual aids can be great. Be imaginative. If some object or device is important to the case, and portable, consider bringing and displaying that thing.
- If the tentative is in your favor and the judge says the other side’s oral argument has not moved her, just say “nothing further, unless the court would like to hear from me.” After argument and a final ruling, do not attempt further argument.
- Ask for priority only if necessary.
- Bring a proposed order for the judge to sign on the spot.
Copyright 2023 by John Shepard Wiley Jr.