Constance Miller Litigation Communication Services

EFFECTIVE COMMUNICATION DURING ORAL ARGUMENT

As I entered the courtroom and quietly took a seat in the back, one attorney was defending his client's case to the judge, making an argument in a relaxed, heartfelt way. When I paid more attention to the words I found the subject matter was dry, abstract, little bits of technical details. However in the 5 minutes he spoke, the sound of his voice - clear, personal, direct - made me want to make the effort to hold onto the content of his message.

Then it was the other attorney's turn to rebut. I had been distracted by his behavior during his opponent's turn, fiddling with his papers, stretching his neck and back in his too tight business suit. He moved yellow notepaper into and out of his briefcase, shuffled his feet, cracked his knuckles, cleared his throat and gasped. Then he approached the bench and spoke. His voice was thin and complaining. When I had first met him in another context he had showed a pleasant open demeanor, but here in court he became a sputtering, snorting bull, yet with a nearly inaudible constricted voice.

The judge looked at him in a charitable, conscientious manner, waited him out - then largely ruled against him, only throwing him a crumb by bifurcating part of the fee structure that was at issue in the argument.

After it was over and we rose for the judge, I left the courtroom but lingered in the hall, hoping to make contact with my acquaintance. As he left the room I overheard him mutter to the other side something sarcastic about how happy they should feel now that they had won the day.

In my business, I spend a lot of time in court observing. I am not an attorney, have never gone to law school, but have spent over 25 years watching attorneys in deposition and trial. I especially like to wander around the King County Courthouse, stopping in one courtroom at a time, listening and watching to understand how attorneys, judges, and expert witnesses use courtroom skills. Usually my focus is on trials, since case communication strategy and witness preparation consulting are my bread and butter.

But occasionally I have stepped into a courtroom where motions are being argued and what I noted as I watched these arguments, is that a motion has a certain dynamic form and is so limited in scope and time that it is a perfect vehicle in which to refine one's speaking and arguing skills. All of the principles of presentation can and should be used effectively by an attorney in oral argument in motions practice.

So recently I set about studying motions practice, talking with attorneys and judges about their experiences, and attending Friday morning oral arguments. What I learned I will outline here. In addition, I have developed a series of skills-oriented seminars which will be presented by WSTLA this fall, in order to give attorneys the opportunity to practice the various techniques offered, coached by two other attorneys and a retired judge. During those sessions, participants will have the opportunity to develop an argument, explore a variety of approaches, and be videotaped for personal review later. The benefit of participating is to gain an understanding and practice in organizing and structuring an oral argument, gain a sense of ease while making an argument, and learn to use your voice, gestures, and visual aids to achieve your goal.

I have identified three main areas of focus: structure and dynamics; voice and body language; visual aids. Using all three to advantage is the goal here.

Structure and Dynamics

Preparation: Know the law and the facts. Know it as well as Ray Charles knows "Georgia". Inside and outside. If the judge asks a question and can see you don't know the answer, he will tend to disregard everything else you have to say and will focus on the other side's view instead.

Attitude: Understand that the judge is looking for information that will help her discern and make the correct ruling. As Judge Sharon Armstrong put it, "I do not need advocacy, but rather a lawyer who approaches the argument as a friend-of-the-court. Once I have found someone who is well prepared, smart and trustworthy, I tend to rely on them for my analysis. Conversely, I completely disregard someone who misrepresents anything, even the smallest detail."

Clarity: Keep it simple, direct, short and slow. Judge Michael Fox compared good oral argument to Hemingway's writing style. Spare. Powerful. He prefers it to be relatively short with an active voice versus a passive voice. This shows confidence in position rather than obscuring with language. "There is little need for adjectives and adverbs - just use simple declarative sentences." The more you complicate the issue, the harder it is for the judge to comprehend and decide. Expanding the territory of the argument is like stepping off stable ground into an area of quicksand, and the further you go from the main point the more likely it will be perceived as fuzzy thinking or deliberate obfuscation.

Introduction: The first few minutes are important. Take your time, get visual eye contact with the judge, and speak simply and clearly. Ask the court for direction at the beginning ("Are there any particular areas you would like me to address?"), which is more polite and to the point than asking if the judge has read it. It also tells the judge you are ready to serve the court's needs.

Language: The less legalese the better for several reasons. Though you and the judge speak it fluently, others in the courtroom may not and may not be able to follow accurately. In addition, the traditional prefaces - "Your honor, if I might . . ." "May it please the Court . . . " and "I submit to you . . ." - are often used as a filler or when used in succession in a short period of time may sound too much like pandering.

Show Respect: It is essential that you raise the level of the proceedings by your demeanor. Show respect to the judge by your language, forthrightness, and courtesy. Give the exact same respect to opposing counsel. Adding gratuitous negativity to motions practice by disrespectful behavior lowers the level of the playing field and gives the judge an additional problem to solve.

Responsiveness: Do not dodge the judge's questions. If the true answer to his question is not particularly good for your case, trying to avoid it will not help, but instead create a credibility problem for you. Serve the judge's needs rather than thinking you can be the director or the warrior. The judge is driven partially by efficiency and will not be humored by an attorney who is more interested in spinning a favorable story. When the judge interrupts you, understand that he knows what he is looking for and needs to go after it. Don't take it personally.

Consistency: Provide the judge with a brief cohesive theme at the beginning if she does not start with specific questions, but get on to the main points quickly. Again, your job is to know and provide answers, rather than storytelling. Do not come in with a variety of themes and then switch in midstream if it seems she is not interested in your argument.

Repeating: It can be helpful to your case to delicately repeat the judge's statements supporting your point, but do not trumpet them more than the judge did or he may be inspired to rethink them or qualify them. Never repeat unfavorable statements to your case, even to argue with them. You may find a way to refer to them but do not ever repeat them.

Voice and Body Language

Before these are discussed, it is essential to talk first about the courtroom itself. The courtroom is so much more than a room, as it embodies the whole judicial system as well as the citizens ruled by its laws. It is useful to develop an awareness of the kinesic architecture of the room - how the courtroom functions dynamically: the power centers, the lighting, the ambient sounds, the relationship between the bench and the allowed territory of the petitioners, what room looks, sounds and feels like from the bench, as well as from the back row in the seating area. All of these elements affect the outcome and can be used to advantage. Look at how that particular courtroom can best be used to serve your ability to communicate effectively.

Volume: It is important for the whole Court to hear the proceedings, not just the judge, although of course the judge is your primary "receiver." But often others sitting farther away, perhaps with hearing difficulties, must strain to hear - over the hum of the ventilation system - your voice, which is directed in the opposite way towards the judge. For this reason it is essential that you support your voice with more breath by using your abdominal muscles to breathe, not just your chest. Stand or sit upright with your chin up, not looking down at your papers. Direct your voice up and out.

Inflection: Your voice can build in volume and pitch to help clarify your statements. If you drop the pitch of your voice at the end of your sentences the meaning and strength will be lost. Keep your attention on your "receiver" until you have finished the last syllable of the last word. Be careful not to add any postscripts that cut into the strength of your statements, such as "Okay?"

Appropriate gestures: If you can come from a place of stillness physically, you will be much calmer and easier to watch. The rule is don't move unless your movement supports your specific point. Don't create visual static by waving your yellow pad in the air for emphasis. Gestures can be used effectively to support your points, especially if you are describing any kind of action. For instance, if you are describing the transferring of funds from one place to another, moving an imaginary object from one side of you to the other supports that point and will make your statement have more impact and be more memorable.

Physical ease: If you have your hands in your pockets or clasped behind your back you telegraph a lack of confidence; most people never do that unless they are self-conscious. Keep your focus on your "receiver" and your message, rather than on what kind of impression you are making.

Facial expressions: The judge is very aware of your "mask" and is sensitive to any efforts you make to persuade with your face. If your face shows openness and cooperation you will do much better than if you make faces ridiculing the opposing counsel during their argument, which is distracting and disrespectful.

Visual Aids

Every judge I have talked with appreciates the use of visuals in oral argument. Remember the job is to serve the judge's needs by providing any information to clarify the issues. Visuals capture the attention of the judge, remind the judge of relationships (organizational chart), or show pertinent documents (previous cases cited), etc.

Visual information is particularly effective, because the mind accesses it directly, rather than going through the thorny brambles of the neo cortex. Only the eyelids censor information coming through the eyes, compared to the defensive ears that challenge all information coming in. PowerPoint slides can be used if very simply designed, but the judges prefer boards because the computer technology fails so often, disrupting the proceedings and creating time problems. In addition, it is helpful to provide copies of key documents on the spot to save the judge from having to go through a file to find a document during your turn. There is no question that visual information will enhance your argument in just the manner preferred by judges. It clarifies the point and saves time.

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