Arguing Motions in the Trial Court 

Unlike the captive jury who is trapped in place until the lawyers finish speaking, the judge controls the amount of time you'll have for oral advocacy. (Like the jury, however, the judge may fight to stay awake during a boring presentation.) Plan your argument in advance, and plan to keep it on the short side. Despite this advice, there are some things you should always do:
 

Even if the judge knows you well, she may not know whom you represent in this instance. If the hearing is being recorded, these introductions establish who is before the court.
 

The more common the motion, the briefer this overview can and should be. Conversely, the more unusual or complex the motion, the more this overview will help the judge get a good grasp of the issues before her. If the judge is most interested in a particular aspect of the complex motion, she may direct you to or question you on that part of the argument. Your overview will orient the judge, however, to the positioning and relationship of all the issues brought for her consideration. This technique is particularly effective if your time for argument is limited.
 

Just as with the moving party, this overview should be abbreviated or expanded depending on the nature of the motion and your response. You will develop your specific reasons within the context of your argument in chief.
 

With limited time and the possibility that a judge may prematurely terminate your argument, it's essential that you make your strongest and most dispositive points first. What are your "make or break" points? These must be addressed, even though they are often the most difficult to confront. Remind yourself that even if you can win on a number of smaller, but less critical points, what matters in the end is that you get the relief this motion requests.

Be well prepared on essential cases, statutes, and rules. It will help if you know your authorities cold and if you can point the judge to the precise language within each that compels the result you seek. Relate that critical language to the facts of your case, drawing upon analogy if possible. Argue policy where appropriate. The stronger and more convincing your presentation of the essential law in your favor, the more credible you become as an advocate.

And yet, be candid; this is your ethical duty as an officer of the court. If the law is unclear, or contradictory, you are better off acknowledging it than concealing it or misleading the court. And naturally, you will never ignore or conceal adverse authority. Remember that a trial court is bound by mandatory authority, and it may be unable to rule in your favor. If you have a good faith argument for changing the law, however, you'll want to advance that argument before the trial court, in order to preserve the issue for appeal to a court who has the power to overturn existing precedent. Show the court why the existing law does not cover or should not be applied to your client's situation.
 

Many lawyers assume (perhaps correctly) that the judge has not read the briefs prior to hearing the motion. Even if this is true, you have little to gain by essentially reading (or repeating) the contents of your brief. If the judge has read it, he will recognize what you're doing, and will either listen less attentively, cut you off, or tune you out. If the judge hasn't read the brief, you are still taking a grave risk with this method of presentation, as it tends to be less engaging. If you're looking down at the written page, you can't make eye contact with the judge, you can't gauge his reactions or read his body language, and you can't effectively persuade.

Even when lawyers do not regurgitate the contents of their briefs, they are sometimes tempted to read pithy (in their eyes) quotations from authorities. While trial judges often derive comfort from getting an understanding of what mandatory authority requires, try to limit your use of quotations to truly special language. Overquoting can backfire on the lawyer who indulges in it. The judge may be annoyed by being read to, or she may simply quit listening. Neither of these possibilities is desirable.

Make an outline of your argument, but don't write out the text or memorize it. If your argument is written down, you'll be tempted to read, and you'll miss the non-verbal cues you might have gotten from the trial judge. If you memorize your presentation, you have effectively destroyed any possibility of flexibility should the argument take an unanticipated turn. An oral argument is a dynamic event; it is shaped by the participants and their interaction with one another. Your planned presentation will certainly influence the direction it takes, but you need to be able to change gears quickly if needed.
 

What about citing cases, rules, or statutes? This approach can be helpful, if you don't overdo it. Unless a case is quite well known, it's best to give the full name ("Clinton v. Jones," not just "Jones"), the deciding court ("the United States Supreme Court") and the date ("1997"). For statutes, a popular or descriptive name is usually more meaningful than a numeric recitation ("attorney's fees for estates," instead of "Arkansas Code section 28-48-108"). Assuming you have cited the authority in full within your brief, you don't need to provide page and volume of the reporters. If you have not cited the authority within your brief, have copies ready to hand the judge and opposing counsel.
 

The key word is brief. It is always a good idea to reiterate your request for relief, and if you can concisely summarize--in fresh and succinct manner--the reasons you are entitled to that relief, go for it. If you have said everything you planned to say, and you have time remaining, resist the temptation to repeat your main points just one more time. Be aware that as soon as a judge hears, "In conclusion, Your Honor . . .," he mentally prepares himself for this speech to come to an end. He will momentarily perk up, but if you drone on too long, he will quit listening, or worse, tell you to sit right in the middle of a sentence. And it is always good manners to end with a "Thank you, Your Honor."

Treat the court with respect--arrive punctually, dress appropriately, rise when you speak. Direct your argument to the trial judge, not to opposing counsel. When your opponent speaks, listen carefully and make notes; object if appropriate and necessary, but do not otherwise interrupt her presentation. Act as a professional. No matter how much you think the opposing lawyer's argument stinks, avoid making faces, rolling your eyes, or snickering. All you'll do is lower your own credibility in the eyes of the court.

Welcome questions from the bench, and do your best to answer the judge directly. If you don't understand the question, there's nothing wrong with seeking clarification. A good technique--which also shows the judge that you were listening--is to say, "Your Honor, if I understand your question, you were asking . . . " and then paraphrase what you think the judge was getting at. If you're right, you'll get a signal from the judge; go ahead with your answer. If you're wrong, the judge will be more likely to rephrase the question than to just repeat it, at a louder volume.

What should you do when you get that question you dreaded? The fact that you dread that question should mean, first of all, that you thought about it in advance of the hearing, and you should have a prepared response. Deliver it candidly and firmly. Don't try to wiggle away from it. Most trial judges are experienced litigators; if they sense that you're avoiding the answer to their questions, they may choose to roughly cross-examine you until you do. Don't make the mistake of turning the judge into your adversary. You've already got one opponent; you certainly don't need two.

In conclusion, treat every appearance before a trial court as your opportunity to build and enhance your good professional reputation. For judges in whose courts you will appear on a regular basis, there is an incalculable benefit to being an attorney this judge has found to be competent and dependable. Don't make the mistake of assuming that just because a special judge is sitting, you'll never appear before this person again. You may be facing her after the next election. Similarly, don't assume that your trip across the state to open an estate before a circuit judge in Marion means you'll never see him again. No lawyer has a crystal ball to predict the kinds of cases he'll get in the future.