Oral Arguments
When people think of legal arguments, they often imagine lawyers passionately debating the law aloud in front of a judge. And while the bulk of the legal work takes place during research and drafting written submissions, lawyers do sometimes argue the law in court. The process can be exciting at times, dull at others, and an interesting insight into what judges think and how thoroughly the lawyers have prepared.
Why should you continue to read this post about oral arguments?
You want to watch a court proceeding, but not a trial or witness testimony.
You want to watch pompous lawyers get taken down a peg.
You just watched an oral argument and want to know why there wasn’t as much yelling as the name suggested.
Image credit: https://en.wikipedia.org/wiki/Oral_argument#/media/File:New_York_Court_of_Appeals_hearing_oral_arguments.jpg
How Oral Arguments Work
Unlike an argument in a bar or at the dinner table, oral arguments in commercial litigation usually have an organized structure. In a trial court, the judge normally invites the lawyer making a motion to explain why her motion should be granted. And at an appellate court, the judges invite the appellant’s lawyer to explain why the trial court’s decision should be reversed. Then the lawyer begins speaking and opposing counsel is supposed to remain silent. The judge or judges, however, may interrupt with questions and even maintain a back and forth conversation with the attorney about the arguments.
As soon as the judge interrupts, the lawyer is expected to immediately be quiet, even stopping speaking mid-sentence. One major reason for this is out of respect for the judge, who will be deciding the argument. Another is that there is usually a stenographer, writing down each word that people say at the argument, and this person can only write down one person’s words at a time.
Interrupting the lawyer, however, may be difficult, because it may require the lawyer to deviate from her prepared remarks or outline. She may need to explain points out of order, and it is often clumsy returning to the structure of the original argument once the judge has interrupted. And time spent addressing a judge’s questions may consume time that was originally allotted for prepared remarks, which could pose problems if the court only permits the lawyer a fixed amount of time to speak.
At the end of her remarks, the opposing counsel is invited to speak in the same manner, uninterrupted by the first lawyer but subject to interruptions by a judge. Here, a good lawyer will mix a prepared statement with a response to the arguments advanced by the first lawyer, explaining why the judge should not accept them.
Following the opposing counsel’s remarks, the first lawyer may have the opportunity to briefly address the new arguments. And while a judge may permit each side to go back and forth, the first lawyer usually gets the last word and the judge often does not want to hear each side speak more than twice.
Oral arguments vary in length. Sometimes they go on for about ten minutes, and sometimes they go on for over an hour or even more. And while most courtrooms don’t record oral arguments, many do.
Oral Arguments Are to Address the Judge’s Concerns
Unlike witness testimony or a closing argument, oral argument is for a judge and not a jury. As a result, lawyers normally avoid flowery poetic speeches and go straight into their arguments and then conclude abruptly.
Moreover, oral argument normally comes after the parties have already submitted written statements that explain their arguments, show their supporting evidence, and state their legal support in detail. Some judges have read the papers ahead of time, and are aware of the facts and arguments, and only want to dedicate the argument time to issues where they need more information or are curious about a particular aspect. Others, however, do not indicate that that they have read the papers and allow the lawyers to make a presentation about all of the major arguments.
In any event, lawyers know that their ultimate goal is to persuade the judge, and so they tailor their oral arguments to the issues that the judges tell them are important to them or explain to the judge why other issues may be more important than the judge initially believed. They also listen to hear if a judge says something that indicates a misunderstanding, so the attorney can respectfully correct the record.
Preparing for Oral Argument Often Involves “Mooting”
To prepare for an oral argument, lawyers will often prepare an outline of the remarks they intend to make. They may also bring with them copies of the statutes and legal decisions upon which their arguments rely, in case the judge wants to see them or to discuss specific language in them. But they don’t want to waste time in front of the judge fumbling through papers, and so will often spend time organizing those papers in advance of the court date.
But the best preparation for an oral argument usually involves asking another lawyer to pretend to be the judge and to practice having the oral argument. This process is called “mooting,” since it resembles a “moot court” event from law school in which students pretend to be in court. When mooting an argument, it is helpful for a lawyer to pretend both to be a quiet judge, allowing the arguing lawyer to practice speaking to a “cold bench,” and to pretend to be a hostile judge, allowing the lawyer to practice responding to tough questions from a “hot bench.” Often a lawyer’s first extemporaneous response to a tough question is not the best thought out one, and so practices like these allow a lawyer to refine responses so she can do her best at the actual argument. Mooting also allows a fresh set of ears to hear the argument and pose questions that the arguing lawyer had not thought of and therefore may not have been prepared to answer.