Oral argument matters. Though it remains true that
most motions are won or lost on the briefs, oral argument is the judge’s
one chance to ask you questions about the record or your position. It’s
therefore your one chance to assuage the doubts that may stand
between you and a favorable ruling.
The golden rules of oral argument are no secret. Be prepared. Know
your case law. Show up on time. Be professional. Don’t yell at the
judge. These are a given. So here are some
next-level things you can do to make the
most of oral argument.
Prepare two arguments. The hard thing
about oral argument is that you don’t
know what you’re going to get from the
judge. Will it be the stone-cold silent
judge, or the one who interrupts each
answer with another question? The judge
who pored over your briefs, or the one
who needs to be educated?
Because you don’t know whether the
judge will ask questions, you should prepare two arguments. One consists of the
answers to questions the judge may ask.
You may never get to your prepared
remarks, so plan for an inquisition in case
one comes. The other is a short speech that
hits one or two critical points, in case the
judge asks no questions. Don’t try to hit
every point you made in the briefs; that’s
what briefs are for. Instead, find your most
impactful one or two points and press those.
Know the record inside out. Knowing the law is important,
but knowing the record is indispensable. The judge may
know the law but counts on you to know your case. If you
can’t answer a question about the record, two things could
First, you miss a chance to nail down a point on which the
judge is wavering.
Second, you leave the impression that the motion is not
important enough to warrant your full preparation. Sure,
everyone gets blindsided sometimes, but the good advocates
minimize the chance. And if there’s a younger lawyer who
wrote the motion and knows more about the case than you,
consider letting that lawyer argue.
Anticipate questions and answer them directly. The true art
of oral advocacy is anticipating questions you may get and
10 ARIZONA ATTORNEY NOVEMBER 2015
CIVIL PRACTICE POINTERS by Hon. Randall H. Warner
Hon. Randall H. Warner
is an Arizona Superior Court Judge
in Maricopa County.
crafting the answers ahead of time. That’s
how you ensure your argument remains
consistent with the overall case strategy. It’s
how you keep from painting yourself into a
corner. If you’re winging it on questions,
you’re doing the client a disservice.
When you do get questions, answer
let the other
evade a critical
why would the
judge let you? If
the judge asks
a question, it’s
because the ans-
wer may affect
you dodge, dip,
duck or dive,
we know it, and
the chance of
Prepare to concede weak points. Nothing
undermines the credibility of one good
argument quite like making seven more
with equal vigor. Some arguments are weak,
and by conceding them you bolster your
credibility and, therefore, your more
Prepare to impress. Finally, you should use
every court appearance as a chance to enhance your reputation among the bench
and bar. This is especially true for emerging
lawyers. Dress appropriately for court.
Stand when speaking if you can. And come
to court more prepared than you need to
be. Good reputations have a financial value,
and they are built one court appearance at
a time. AZ AT
This column provides tips from judges on civil
The judge may know
practice. If there are practice tips you’d like
covered—or if you are a judge who would like
to write a column—write to
the law but counts on
you to know your case.
If you can’t answer a
question, bad things