Originally posted on 11/12/2019 (reformatted).

Whether you want to be a successful litigator or merely survive oral advocacy class, find below some tips and tricks that I’ve found many law students and young lawyers neglect. These tips and tricks often go equally well for judges, juries, and professors!

Preparation is Most Important

In speaking with numerous judges, this is the number one piece of advice they have for young lawyers. How you say it is important, but there is no substitute for being prepared. Know your case inside and out and top to bottom. You should always strive to know your case better than anyone else in the room – possibly even better than the parties themselves. Effective presentation may make you look good in victory (or defeat) to a full courtroom, but there’s no amount of presentation that will save you from being ill-prepared for court. The merits of your case are what matters at the end of the day, but you cannot effectively have the court consider your case if you are not familiar with the relevant and important facts. Know the facts of your case, the pleadings before the court, the remedy sought, the major players, your client’s name, the judge’s name, etc. If you’re worried you will forget any given important piece of information, don’t be afraid to come up with a system of notes you can reference in quick manner if you are stuck. 

If the Judge Asks a Question, Answer It

This may seem obvious, but it’s amazing how often a lawyer will try to avoid answering (or simply not actually answer) a judge’s question when it is asked. In most hearings, the judge will make the decision. It is their opinion of the facts and law that matters. In the room, they are the ears that matter. Failing to address the decision maker’s questions is like acting in a play and putting your back to the audience. Their questions reflect their thinking on the case and what they care about. If someone’s making a decision that affects your client or your position, listen to what they are asking and respond. This is equally, if not more important, in a jury trial where the jury gets to ask questions. If you know what the jury’s thinking about and you have a good argument to make regarding such, make that a big part of your presentation. If the jury cares about something, you need to care about that as well. 

Answer the judge’s question, but do not avoid telling the judge, “No,” if that is what is required by your position. Judges will not always like or agree with your answer, but they do need to hear your answer. They’re not going to hold your position against you as an attorney so long as you can reasonably defend it. Judges recognize that attorneys are advocates and oftentimes will defend a position that may not be a winning or likeable position. They’re not going to rule in your favor simply because you avoided disagreeing with them. In responding to the judge, answer their question directly, “Yes” or, “No,” if possible and follow up with an explanation as needed. If the judge asks for authority on something, present the case name and cite or say there is no authority for that position. A judge is not likely to cut you off at only a yes or no – though it does sometimes happen if they’re not actually looking for an answer or if you have already avoided answering their question multiple times. In that case, they were likely to cut you off as soon as you started talking no matter what you had to say and it may just be unavoidable. 

More often than not, however, the judge simply wants the best arguments before them in order to make the best decision. Remember that you are the best and oftentimes the only advocate for your client and position. Usually, no one else in the room is looking out for your client’s interests – not the judge, not opposing counsel, etc. Your client’s position will not usually win without an advocate for the position in the room. You must be that advocate even if it requires disagreeing with the judge. 

Take a Moment as Needed

Time passes strangely when you’re in court. Oftentimes, court is hurry up and wait. You must arrive on time or early to present when the judge is ready for you – no matter what time that is. You will often have to wait your turn to have your case heard and then be immediately ready to go as soon as your case is called. The passage of time is strangest, however, with respect to how a delay in speaking is perceived by you and how it is perceived by the judge or anyone else. While a few seconds of pause may seem like an eternity to you, it is often not noticeable to anyone else in the room. Sometimes, you may just need to take a moment to collect your thoughts in order to better frame or present your argument.

No matter how well-prepared you are and no matter how long you practice, sometimes a judge will ask you a question you were not ready for or you may simply lose your place in your argument momentarily. Do not be afraid to ask, “One moment, Your Honor.” Take a few seconds to gather your thoughts and find your place again or consult with your client with regards to anything you’ve missed or any questions they have. A few seconds may seem like forever to you, but oftentimes the court will not even register the delay – especially if you ask for the court’s grace as suggested. A few seconds of silence gathering your thoughts is far preferable to a series of filler words or incoherent and unrelated arguments. It’s called the practice of law for a reason – except for the extremely rare occasion, a conscientious lawyer will always walk out of a substantive hearing wishing they had said or done something different. Oftentimes, it’s something small such as putting more emphasis or less emphasis on a given point, saying something in a different way, or wishing they had remembered to include a given fact or argument. A few moments to collect your thoughts may help to limit or eliminate a lot of these concerns. It may seem like forever to you, but everyone in the court room is probably relieved to have a few moments to take a breath – especially the court reporter! 

Volume and Pacing Can Be Helpful

That brings me to my next point – volume and pacing can be helpful. Speaking rapidly may cause some of what you say to be missed by the judge, but it will surely also earn you the ire of court reporters and recorders who may have to create a transcript from the hearing. When adrenaline or emotions are high, it’s easy to begin talking rapidly, but you should learn to control that urge. 

Careful and intentional pacing and volume can also assist in your presentation. Most people have a typical volume or pace of speaking. Modulating from that volume or that pacing can help to accentuate a point to the judge or jury. If you normally speak quietly, don’t be afraid to speak louder or more direct. Appearing more passionate or emotional than usual will help convince a jury you genuinely believe your position or highlight key portions of your argument that are important for the jury to consider. If you normally speak loudly, lower your voice and draw the judge or jury in. It’s a great tool to draw suspicion on a fact or highlight a key fact depending on your presentation. Changing pacing can also be extremely effective in keeping the jury engaged and drawing attention to key portions of your argument. Remember that the best arguments only succeed if they’re heard by the factfinder.  

Find Your Own Style

You may start to see a theme in my articles – make up your own mind, be yourself, find yourself, it’s your practice, etc. But oral advocacy is like everything else – it’s important to find your own style. While it may be helpful for you to continue to hone your presentation and your craft, it’s all about finding what does and does not work for you. If you’re not being genuine with a judge or jury, they’re often able to pick it up. Work towards being a better version of the advocate that you are. Like certain clothing items, certain techniques may not fit you. Figure out what works, don’t be afraid to explore new techniques, and add them to your repertoire if they work or put in the work to make them work for you. Hearings, and especially jury trials, are oftentimes a theater performance where you are always performing. Put your best foot forward and use your skills and presentation, learned through preparation and practice, to be an outstanding advocate for your client. 

Nobody’s perfect. Law is a practice. Continually work to improve your advocacy to better serve your clients (or your GPA!) Good luck out there!

(Author unknown).