This month NITA’s faculty will be talking about motions. Last week we heard from the Honorable Christina Habas. She gave us the advice on how to Offer Alternatives to the Court. Today, NITA faculty Andrew Schepard, the Max Schmertz Distinguished Professor of Law for Maurice A. Deane School of Law at Hofstra University, will discuss five guidelines for answering hard questions at oral argument on motions. Next week, Judge McGahey is back with with three simple rules to follow when filing motions. And still to come later this month are other NITA faculty and their best practices when filing motions in NITA’s April content series.
You represent a father seeking damages for the wrongful death of his child. The wrongful death statute says that relatives of the deceased can recover for the pecuniary loss of a “person” that they are related to. The word “person” is not defined in the statute and it does not mention “child.”
Defendant moves to dismiss the complaint because the statute does not authorize recovery. At oral argument, the motions judge asks you a question:
“Counsel- The statute doesn’t mention “child”, only “person”. A person is an adult, not a minor. So, the statute does not authorize wrongful death recovery by a parent, correct?”
What is your goal in responding to this question? To those who like sports analogies, it can be thought of as a major-league pitcher’s strike out pitch. It seems to from a disagreement with your position. Its dares you to answer it. And what you want to do is hit it out of the park just like the best major league hitters do.
Your actual answer will, of course, depend on precedent and policy in your jurisdiction. Here, however, are some guidelines for the attitude and style of your answer presented at a recent NITA motions practice program. They are drawn from the writings of noted judges and authors on advocacy as well as my own experience.
Guideline #1 – Brainstorm questions and prepare answers in advance
There is simply no excuse for not anticipating the question and answer in advance of oral argument. Play the devil’s advocate in preparation. Attack your argument as you believe a skilled opponent would. Pull no punches. If you find weak spots, expect your opponent to find them too. Don’t ignore weaknesses — embrace them. It is far better to recognize a flaw in your argument when you still have an opportunity to fix it than on argument day in front of the judge.
So, preparation for oral argument means systematically answering questions like:
– Where are the hard issues?
– What hard hypotheticals are there?
– Where are the key disagreements between the parties?
– What practical considerations or public policies impact the weight of the arguments (that is, what real or hypothetical facts, if slightly altered, could influence the outcome)?
– What are the most likely counterarguments to your points?
– Are there points of compromise that might be suggested if the judge seems to be leaning the other way? Construct a variety of fallback positions and plan when you might introduce them.
Mooting oral arguments in advance with colleagues helps them help you answer questions like this.
Guideline #2 – Welcome the question.
Regard the question as an opportunity to educate the questioner on the “right” view of the case – yours. As Judge Paul H. Anderson former Associate Justice of the Minnesota Supreme Court said:
“Most good… advocates welcome difficult questions because they know this is how they can engage in a dialogue with the court…Every question from a judge should be regarded as a gift, even the most difficult question… you will use the information gleaned from the questions to make a persuasive argument. –
Do not regard questions from the court as annoying because they require you to depart from your prepared text. Also, do not treat them as lighted sticks of dynamite about to explode and injure you. Often the judge is trying to telegraph the point you need to convince her on. Accept the invitation and challenge the question presents with grace and style.
Guideline # 3 – Respond directly, concisely and without delay.
When the judge asks her question immediately end your prepared presentation. Stop whatever you are doing and answer the question directly – and simply.
• “Yes or “No” are the best possible answers.
• If you explain, do it after the “yes” or “no.”
• KISS- “Keep it simple, stupid”- meaning do not use a lot of big words and legalese in explaining your answer
• “I will get to that later” is not acceptable. Answer the question immediately. Nothing in your argument is more important than that answer.
• Praising the question (“That is a good question your honor) is potentially condescending. Just answer the question
• Do not try to change the subject or evade the question (e.g. with a long emotional statement beginning with “The father suffered great emotional harm because of his son’s death”…) – a damaging, but short, response with a cogent explanation is better than a long- winded, nonresponsive answer.
Guideline #4 – Concede minor points to enhance your credibility:
The ancient Greeks and Romans were wise in the ways of debate. As Bryan Gardner points out in the most recent edition of Garner’s Modern English Usage (4th ed. 2016) they developed tactics and rhetorical devices that can be adapted to oral argument.
For example, Garner suggests using the rhetorical tactic of “paromology”- the concession of minor points as a way of enhancing your credibility. After “no” begin your explanation with: “It is true, your honor, that the statute doesn’t specifically mention child. But it doesn’t need to: it says ‘person….” By beginning this way, you are not really conceding anything but you acknowledge that that you’ve heard what concerns the judge.
Guideline #5- Return to themes after answering.
Your job is not done after you hit the home run in response to the judge’s question. You still must circle the bases. Go back to your argument outline and continue. End strong.