written by NITA guest blogger and Communication Expert Rebecca Diaz-Bonilla. Mrs. Diaz-Bonilla is the co-author, alongside the Honorable Nancy Vaidik, of NITA’s newest publication Point Well Made.
My clients know that eating humble pie before a motion generally prevents having to devour a hefty slice during the motion. I recently watched one of my clients deliver a motion so conversationally and confidently, I was dazzled. The Federal Court judge apparently agreed with me because he issued an enormous “I’m with you!” order that shot down the hopes of opposing counsel. It was a major victory.
The effortlessness was not effortless. This advocate spent hours with me practicing, developing his lead, thinking through creative phrasing, mapping out intricate argument trees, and rehearsing a battery of possible questions over and over and over again.
Sure, he started with huge mental horsepower (God-given) and natural advocacy talent (God-given), but he was not afraid to put himself out there and give his all. Most impressively, he asked for feedback. He hungered for constructive criticism, trusted my recommendations, and repaired the deficiencies.
It’s true that a less gifted lawyer would need to double the prep time to achieve the same result, but my client knew his strengths and knew specifically what he needed to practice to knock it out of the park. All advocates need to figure out their personal recipe for winning:
This combination: talent, practice, and humility will produce the right result. I see it every day when I coach talented lawyers who realize that practice and feedback is not for the remedial, it’s for the successful.
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.
The Legal Advocate’s semi-regular roundup of legal news and views you might have missed.
The Fitbit murder: one more “brave new world” way technology is changing the conduct of legal investigations, trials, and outcomes. (CNN)
Justice Breyer finds out the hard way he gets four bars on the bench. (Washington Post)
A first for the nation: an ABA-accredited law school shutters its program. (Los Angeles Times)
Tongues are already wagging about the next SCOTUS nominee. (The Hill)
Speaking of the Supreme Court, have you listened to “More Perfect,” a wonderful little podcast series about curiosities of the Court, yet? (WNYC)
Slippin’ Jimmy McGill takes one step closer to Saul Goodman—and in the process acquires a fool for a client. (New York Times)
Written by guest blogger Judge McGahey
Erin Brockovich was released in 2000 by Universal Pictures. Julia Roberts won a Best Actress Oscar for portraying the title character, a real-life, self-trained legal assistant who played a huge role in a landmark environmental case. It’s a movie that should remind all of us how much we need hard-working dedicated people to support what we do as trial lawyers and judges – and how sometimes what we need is for those folks to kick our keisters.
We first meet Erin as a plaintiff, suing a doctor with whom she was involved in a traffic accident. In spite of having a good case, her angry behavior in the courtroom leads to a loss; her lawyer Ed Masry (Albert Finney) intends to wash his hands of her. But then Erin appears in Ed’s office, tells him she has three kids and is out of work and that she has to hire her, since he lost her case. Somewhat surprisingly, Ed does exactly that, even though Erin has no legal background or experience.
Erin is assigned a case involving a couple who’s negotiating the sale of their home to Pacific Gas and Electric (PG&E). As she researches the file, Erin comes upon evidence that the property is contaminated with a carcinogenic chemical. Eventually, it comes to light that much of an entire town has been affected, along with hundreds of people. A class action suit is filed. Ed eventually decides that arbitration could produce a more rapid result for his clients, but such a tactic would require the agreement of most of the plaintiffs. After much more hard work by Erin, who wins the trust of the townspeople (and who also has to prod Ed to do what a lawyer should do), the arbitration is agreed to. Erin keeps digging and investigating and dramatic proof of knowledge of the scope of the problem by PG&E’s management is uncovered, leading to a court-ordered payment of $333 million dollar to the plaintiffs.
Erin Brockovich was a popular and successful film. In addition to Roberts’ Oscar win, the movie was nominated for Best Picture, Finney was nominated for Best Supporting Actor, there was a nomination for Best Screenplay, and director Steven Soderbergh was nominated for Best Director, an award he lost to himself, since he also directed Traffic that year. The real Erin Brockovich has a cameo in the movie — as a waitress named Julia.
Bill Demoulin was my mentor and then my partner. On the day I started with the firm, he made a point of telling me: “Never forget that a lawyer is only as good as his staff.” Being successful in court certainly requires skill and dedication and hard work on our part. But we should never forget that all that skill and dedication and hard work doesn’t mean anything if we don’t have people helping us with the same focus. The success we can deliver to our clients depends in large part on what happens long before we ever get to the courthouse. If you haven’t taken the time recently to thank your legal assistant, your secretary, your investigator, your receptionist, your file clerk, in fact, everybody in your office who makes you good at your job, do that tomorrow, if you don’t have time to do it today.
Now, you’re probably asking what happened to inspire me to write this review. Erin Brockovich is a movie about a focused person, dedicated to justice, who wants to see the right result happen and will do the hard work to make that happen. Maybe you guessed: Kelly Boe let us know she’s going to retire. As we all know, Kelly is an administrator without peer. She is both a team player and a leader. I have never seen her flustered, even when she had good reason to be. If something needs to get done, she gets it done. Her goal has always been that the Second Judicial District should be the model for every other district in the state and that everyone, from the oldest judge to the newest clerk, has the environment and the resources and the help they need to get their job done right. We will miss her immeasurably, but wish her all the best. And we will try not to envy her on that first morning when she wakes up and doesn’t have to come to work!
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. Next, we heard from 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. Up now is Judge McGahey 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.
Since I’m a trial court judge, my focus in these blog posts will be on motions practice from that perspective. This post is about three simple rules that I outline at the beginning of my presentations on motions practice. These rules apply to both the written motions that you file and (if you’re lucky enough to get it) any oral argument on those motions.
Rule Number 1: The Ball Should Always Move Forward. I’ve never understood why so many lawyers want to spend so much time complaining about all the awful things their opponent has done in this case. Please don’t spend time whining about how mistreated you’ve been! Unless the issue involves very specific (and very egregious) conduct, complaining about it doesn’t help me make a decision. And it really doesn’t help me if the fight is about what one lawyer has done to another lawyer. This case is about your client; it’s not (as we were told as adolescents) about you. Tell me what I me what I need to fix and why; take your ego out of this, please.
Rule Number 2: Know Your Audience. I’ll be expanding on this in future posts, but here I’ll just remind you to have some idea who the judge is on your case. What’s her reputation for dealing with the kind of motion you’re filing? Does he more often rule on the pleadings or does he allow oral argument? If she or he allows argument, what’s likely to help you get that if you need it? How quickly can you expect a ruling? Will it be written or oral? Are you asking for something well-supported by case law or are you trying to make new law? Make sure you understand what the judge’s docket is like: crowded? mixed criminal and civil, or civil and domestic, or…..? If you practice in a jurisdiction where one judge handle the motions and another handles the trial, how does that affect you?
Rule Number 3: Don’t Be Afraid to Ask for Help. This flows out of Rule Number 2, and is particularly aimed at younger lawyers. Motions practice is frequently one of the ways we cut our lawyer teeth, both in the stuff we write and when we get to stand up in court and talk. There’s nothing wrong with asking someone with more experience for their advice. Certainly a partner who gave you an assignment is likely to have distinct ideas on what should happen; my partner and mentor, the late Bill DeMoulin, always told us: “The only dumb question you can ask is the question you ask too late.” But remember you can get help from other folks, too. Ask your legal assistant if what you’ve written makes sense, if it sounds snarky, if it comes off as high-handed. If your significant other or friends will tolerate it, practice your delivery with them. Those close to you know you better than anyone else and are more likely to catch distracting gestures or unpersuasive language. Once again, don’t let your ego overcome your common sense. As Jerry Facher (played by Robert Duvall) said in A Civil Action: “Now the single greatest liability a lawyer can have is pride. Pride… Pride has lost more cases than lousy evidence, idiot witnesses and a hanging judge all put together. There is absolutely no place in a courtroom for pride.”
I’ll see you in court…….