This month, NITA’s faculty will be talking about motions. Earlier in the month we heard from the Honorable Christina Habas. She gave us the advice on how to Offer Alternatives to the Court. Next up, was NITA faculty Andrew Schepard, the Max Schmertz Distinguished Professor of Law for Maurice A. Deane School of Law at Hofstra University. Professor Schepard discussed five guidelines for answering hard questions at oral argument on motions. Then we turned the discussion to Judge McGahey and his three simple rules to follow when filing motions. Now, it is time to hear from NITA program director, Carl Chamberlin, with Another Look at Answering the Court’s Questions in Motions Practice.
We’ve all been there. We’re cruising through our prepared argument at a motion hearing and all of a sudden the judge asks us a question. It may not seem good for our side. It may already be covered in our motion papers. Or it may not even appear to be on point. But failing to respond properly can frustrate the court and disserve our client. Questions from the bench provide insight into the judge’s thinking and opportunities to supply the court with the facts, law, and policy needed for a favorable ruling. And we make the most of these opportunities – and the best use of oral argument – by following three basic steps and avoiding one pitfall.
Be immediately responsive. Our first words after the court’s question should convey that we’re answering it. Otherwise, the court will be half listening to see if we’re answering and only half listening to the substance of our response. So if at all possible, start with “yes” or “no.” If you have to begin with “it depends,” promptly say what it depends upon. And if it’s not a yes or no question – e.g. “where are the allegations of intent” – your first words should still make clear you’re answering the question (e.g., “in paragraphs 3 and 4 of the complaint”). If the question asks “why,” your first word should be “because.”
Back it up. Next, provide support for your answer. If it’s a question about a fact, cite to the record. If it’s a question about case law, provide a case name and citation. If you have to explain your “yes” with a “yes, but…,” get to the point and provide your reasoning. The more specific, the more persuasive. So on important matters, rather than simply asserting “the cases indicate that a stay is allowed in this type of case,” be prepared to assert, “the Jones case, at 15 X.3d 467 as cited in our brief, holds that a pending lawsuit on the same facts requires an immediate stay of the proceedings.” And rather than just saying “Smith wasn’t the title holder when the dam broke,” add “you can find that in Crawford’s declaration at paragraph 3.” Although the specifics will be in your motion papers, your oral communication of details will make the judge’s job easier – and make it easier for the judge to rule in your client’s favor.
Segue to your strength. When I’m teaching a NITA motions program, I talk a lot about having your “anchor” — your best point of fact, law, policy or practicality to which you return if the hearing starts to drift off topic or heads in an unfavorable direction. Once you’re sure you’ve responded to the court’s question, return to what’s best for your case. Perhaps you can tell the court that it doesn’t have to reach the more troubling issue if it agrees with you on your main point. Maybe you can distinguish unhelpful case law or turn a fact that seems bad for your client into a positive, and then top it off with the public policy or equity that favors your client. Perhaps you can say your strongest argument is the one that deals with the “real issue” in the case.
Don’t bluff or misstate. And now for avoiding the pitfall. Never, ever, bluff or misstate the facts or the law in your zeal to persuade. Even if you can pull it off at the hearing, someone will eventually find out you were making things up and you’ll lose precious credibility. (And possibly violate your jurisdiction’s rules of professional conduct.) If you really don’t know the answer, say so, ask to submit your answer in writing by the end of the day, and segue to your strength. If you have to concede an unfavorable fact or law, do so, and then give the fact your best plausible spin or distinguish the law, and segue to your strength.
How do we do all of this on the fly at the hearing? We don’t. In preparing for the hearing, anticipate the questions the court might ask. What would you ask if you were the judge reading both sides’ briefs? And how will you respond? Providing responsive, supported, credible answers will go a long way toward successful motions practice.