DON'T FORGET YOUR ORALS

Socrates said that one of the fundamental functions of a judge is to hear the case, after which it should be considered and then decided. He said, "Hear courteously, Consider seriously, Decide impartially." This is the voice of wisdom through the ages. It seems simple enough, but how can a judge hear if the attorneys don't want to argue?

Argument on dispositive motions before the district court is analogous to appellate advocacy. The nationwide trend in recent years concerning appeals decided on the merits by courts of appeal is that about half are being decided without oral argument. In this regard, Rule 56(c) Fed.R.Civ.Proc., which provides for a "hearing" on motion for summary judgment, has been interpreted as not necessarily requiring or implying oral argument. The Tenth Circuit has ruled that oral argument is not required on motions in general, unless a local rule provides otherwise. In this District, the local rule is as follows:

The court on its own initiative may set any motion for oral argument or hearing. Otherwise, requests for oral arguments on motions will be granted on good cause shown. If oral argument is to be heard, the motion will be promptly set for hearing. Otherwise, motions are to be submitted to and will be determined by the court on the basis of the written memorandum of the parties. (DU Civ. R 7-1(f).)

I know of no specific study concerning the frequency of oral argument in motion practice in this district, or any attempt to correlate success on motions with oral argument as opposed to submission on briefs. It is my impression, however, that oral argument is freely permitted on matters of substance and dispositive matters, and that it frequently makes a difference. For those reasons, the following issues are of practical significance to trial attorneys: When should oral argument be requested? When will a judge grant oral argument? How should oral argument be presented?

Justice Brennan once observed in a talk at the Harvard Law School that oral argument is the absolutely indispensable ingredient of appellate advocacy. . . . [O]ften my whole notion of what a case is about crystallizes at oral argument. This happens even though I read the briefs before oral argument; . . . Often my idea of how a case shapes up is changed by oral argument. . . . Oral argument with us is a Socratic dialogue between Justices and counsel.

On another occasion, he said:

I have had too many occasions when my judgment of a decision has turned on what happened in oral argument, not to be terribly concerned for myself were I to be denied oral argument.

Oral argument does appear to have a decided impact upon the judicial determination. In cases presented to United States courts of appeal, where no argument is held, cases are more likely to be affirmed than cases which are afforded oral argument. Accordingly, the answer to the question "When should oral argument be requested" seems to me to be that it should always be requested with respect to motions of real substance. However, most of such motions ought to be deferred until after discovery cut off because very often they are not ripe primarily because of factual disputes. Many motions do not rise to the level of matters of real substance or truly address dispositive issues. Others could best be worked out by counsel — as in most discovery motions-, or deferred until trial — as in many motions in limine-, or deferred until after trial —, as in many motions for sanctions and attorneys fees. But as to dispositive motions of substance which are truly ripe for presentation, oral argument always ought to be requested. Don't forget that unless requested, and the burden of good cause met, oral argument may be deemed to be waived.

A final somewhat questionable but often rather valid reason for requesting oral argument is that the written brief is not up to snuff. In a written study about the impact of oral argument by the Federal Judicial Center, one judge was quoted as saying: "Many lawyers can't write; their briefs are unfocused. Argument gives you a chance to focus the issues." I am not trying to suggest oral argument as a substitute for good written memorandums, but rather — as the same study concludes — to emphasize its importance in "permitting the litigants an opportunity to have their case heard in an open forum." Oral argument includes looking the judge in the eye and knowing that the clerks aren't making the decision.

Unless the case is frivolous, or of the type in which the court has found and concluded that the facts and legal arguments are adequately presented in the briefs and record and that oral argument would be of no material assistance, oral argument ordinarily will be granted. The determination is rooted in judicial discretion, which most often is exercised when the judge determines that it would be helpful to the court in the decisional process. A showing of good cause is required even though both parties may request oral argument. And even if counsel has not requested such, oral argument may be set by the court on its own initiative.

The cardinal rule in my book for successful oral argument is that the strongest and best argument should be presented first, and clearly identified. If several subsidiary or alternative arguments exist, don't make the mistake of discussing them first and in detail, leading up to the real point. The danger of that approach is that the main point may never be reached because of time constraints, or it may be obscured and less effective. Most often boiler plate matters, such as the four part test for preliminary injunction, the standards for granting summary judgment and the like, are not necessary. These take up valuable time and tend to detract from what you really want to get across. The point is, make a good opening. Start with a short statement of the theme of your case. The first 30 seconds are important. Answer the questions which a judge always really wants to know: "What do you want?" and "Why do you want it?" Be short and to the point.

A list of Do's and Don'ts was compiled by the Kansas Bar Association and published in its Journal. The Do's included (1) make eye contact with the judge during the argument; (2) use a relaxed, conversational tone of voice, i.e., do not give a speech; (3) answer the court's questions as they are asked rather than stating you will get to the answer later in the argument; and (4) admit the weakness of your case whether it is facts or law. The Don'ts were as follows: (1) do not read the brief — reading it at argument makes for a boring and uninspiring presentation; (2) do not make distracting gestures, such as clicking pens, tapping pencils, and taking off and putting on glasses; (3) do not repeat yourself; the judge heard you the first time; and (4) do not be condescending or disrespectful to or argumentative with the judge, opposing counsel, or any adverse party. These "No-Nos" were expanded and added upon in an article entitled "Basics of Oral Argument" copyrighted by the State Bar of Arizona. That list includes:

Answer questions directly, completely, and immediately. Don't evade questions, or react to them with irritation, or give perfunctory answers so as to get back to your cherished script.

Don't bluff and don't be evasive. If you will not admit obvious weaknesses in your position, a judge will begin to doubt your credibility in general.

Be candid with the court and accurate when referring to the record or the law. Don't misrepresent or exaggerate the law or facts.

Don't be rude to the court. Although the process is called oral "argument," don't interpret that as an invitation to be cantankerous or belligerent.

Don't make attacks on the intelligence or integrity of anyone. . . . Ridicule and sarcasm rarely improve an argument.

If you cannot get to everything which you had planned to talk about, abandon less important points and make the ones you do make effectively.

In preparing for oral argument, attorneys often wonder whether the court is "hot" or "cold," apparently meaning whether the briefs have been read and studied prior to the argument. Don't be too sure about the temperature of the judge. Sometimes judges who might be classified as "cold" are really "hot," but they want to hear without interruption what counsel may reveal as to what she thinks is the real thrust of the case. Where several alternative theories and multiple causes of action are presented, which are truly relied upon? Perhaps a preliminary assessment has already been made by the court, and the lawyers without prompting have accurately identified what needs to be discussed. Perhaps on prior review it is apparent that the case will require more full and complete study in any event and that argument of counsel in the orderly fashion prepared will be most helpful. Or perhaps the court, like Colombo, is willing to appear uninformed in order to assess more clearly the bona fides of what counsel is arguing. In that situation, questions by the court mistakenly may be thought to be superficial or misplaced.

There are dangers in presenting oral argument. My father used to tell me that every time a person gets up to speak he likely has something to say, or he has to say something. Be sure in oral argument to the court that you have something to say, and that it is well organized and concise. In spite of the great importance I believe you should attach to oral argument, wise appellate judges have counseled thusly: "you might lose the case based on your argument, but you will not win it because of a great argument very often." The teaching here is that if you do decide to present oral argument, make it a good one. A good argument in a close case can carry the day. Another danger in presenting oral argument is failure to be truly prepared and conversant with the case, as in the situation where in response to questions by the court an attorney has to admit, "I'm not that familiar with the case and was asked to make an appearance today," or in post trial motions, "I didn't try the case so I am not familiar with the record." Such statements can only suggest to the court that counsel has little real interest in the matter at hand, perhaps because of a weakness in the position being expounded.

A couple of things to avoid in your attempt to smoke out the court's reaction to your case. First, don't interrogate the judge as to what questions he or she might want to ask. Don't ask the court "have you read the briefs," or "what questions do you have," or "how do you want me to proceed." Such questions are not calculated to place the court in the best of good humor. If the judge has no immediate questions and seems willing to let you proceed in the manner you have prepared, by all means go forward and present your well structured and organized argument. If the judge expresses a tentative point of view, by all means without delay present your "correct" view of things. If the judge does have questions, don't be annoyed and do answer promptly and directly. In all events, however, don't tell the judge — as one lawyer did in an argument before me — that "no matter what you say, you'll never convince me." Statements like that won't endear yourself to the judge and either ought to be left unsaid or rephrased a little less brazenly.

The net purpose of this presentation is to remind you fine practitioners that in addition to well written and excellent submissions, " Don't Forget Your Orals."