Making winning arguments to trial judges and agencies

Arguing before an appellate court presents unique challenges. With limited time to make an argument and with the judge asking questions, lawyers must think creatively to make their points understood.

Through a mock trial, presenters at "The Litigator's Toolbox: Presenting Winning Legal Arguments to Trial Judges and Administrative Agencies," a CLE program at the Section of Litigation's Spring Meeting in Washington, D.C. in April, shared several tips for trial success.

Panelists emphasized the importance of listening to the judge and answering his or her questions honestly and directly. Never evade and never ignore questions, they stressed. Evasive or incomplete answers to a judge’s questions can lead to a loss of credibility with the court. Additionally, panelist Linda Listrom, Jenner and Block LLP, suggested that lawyers use these questions as an opportunity to highlight their argument by weaving their key messages into their answers. In fact, rather than follow a script, lawyers may be better off making their case by responding to the questions of the judge, panelists suggested.

Other tips include:

• Use visuals to make your case. For example, when complex, technical language is at the heart of the case, posting important phrases on a screen or board may boost understanding of key concepts. Other visuals that may make sense include a timeline or a diagram of events. Select visuals that do not distract from or bog down your argument.
• Think about using handouts. Some judges like to take notes on a handout. Consider, however, whether these visuals are a distraction when your time is limited.
• Make sure the theme of your case is compelling and reasonable.
• Know your judge. What does this judge want to get out of the oral argument? Does she like a history of the case laid out, or does she prefer that you get straight to your main argument?
• Humor can be risky. Make sure you know your judge well before attempting to utilize humor.

Participants of the mock trial included, Lawrence D. Rosenberg, Jones Day; and Linda Listrom, Jenner & Block LLP, who served as counsel to the defendant and plaintiff. Judges Paul L. Friedman, U.S. District Court for the District of Columbia; Ellen Segal Huvelle, U.S. District Court for the District of Columbia; and Sharon Prost, U.S. Court of Appeals for the Federal Circuit, served as the judges hearing the case. Victor Bolden, general counsel, NAACP Legal Defense and Education Fund, acted as moderator for the program.

For further reading, course materials are available here.

Back to top

Back to home