I once had a professor in law school who told everyone in my class that in order to be a good advocate, lawyers need to speak as much as possible at oral arguments. According to this professor, those who speak more during oral arguments are able to control the pace of the proceedings and make the most points that can be considered by the court. Nevertheless, in numerous situations it pays to actually speak less during oral arguments, and lawyers should sometimes exercise restraint and refrain from speaking too much.
Perhaps the most important situation when lawyers should speak less during oral arguments is if it is clear that the judge is siding with the attorney’s client. Sometimes, judges come out swinging at the party against whom the judge intends to rule after oral argument. In such instances, judges may ask critical questions and make arguments in favor for why the other attorney should lose in a matter. Of course, if a judge asks a prevailing party a question in such instances, that lawyer should speak up, but in all other situations, the lawyer should just let the court do its work.
One time, earlier in my career, an attorney asked for a temporary restraining order against my client in a real estate matter. It is very hard for parties to obtain this type of relief since temporary restraining orders are usually granted on an expedited basis without the court hearing much evidence. Accordingly, the party asking for a temporary restraining order usually needs to satisfy a high burden in order to obtain the requested relief.
At oral arguments to decide the temporary restraining order, the judge came out swinging against my adversary who represented the party seeking a temporary restraining order. The judge made my arguments for me and asked extremely incisive questions to my adversary. I said almost nothing at the oral arguments since I thought that adding analysis to the mix could only hurt my client if the judge was already clearly in my client’s favor. In the end, the judge ruled in favor of my client, and my client was impressed with the outcome I had helped obtain even though I only said a few words during oral arguments.
Another time lawyers should say as little as possible is if they have strong papers to support the arguments made on a matter. Lawyers have different competencies, and some are better writers than others. In addition, sometimes lawyers have exceptional papers on a subject, either because they have experience drafting the type of papers involved in a matter or if lawyers invested time and resources in drafting exceptional papers.
In such instances, it sometimes pays for lawyers to rest on the arguments presented in the papers. This is especially prudent if it appears as if there is a “hot bench” and the court has carefully reviewed the materials submitted in a case. Of course, lawyers should still answer all of the questions asked by the court during oral arguments, and this can help clarify issues. However, referring to papers is sometimes better than relying on oral arguments, and often, judges will appreciate advocates who save time by not repeating points that have already been conveyed in the papers.
Depending on the oral argument style of a judge, it may be even more important to speak as little as possible during oral arguments. Some judges are passive during oral arguments and interrupt parties very little while they present their points. However, some judges are very active during oral arguments and ask questions of the advocates related to the papers or the facts involved in a dispute.
More often than not, judges ask questions of parties who speak more during oral arguments. This is because the points made during oral argument are on the minds of judges, and judges may want to inquire about those points. Some judges are hostile when asking questions and like to pick arguments apart with their questions. When lawyers face such judges, it usually pays to be asked as few questions as possible, since lawyers can trip up when they are asked difficult questions. In addition, the stress of being asked a challenging or hostile question can knock a lawyer off his or her feet and make it difficult to present good points at oral arguments. If a lawyer has a bad demeanor at oral argument because of the stress of questions, this can impact a judge’s decision-making. By speaking less, lawyers may be less of a target for questions, and might look stronger than their adversaries who are unable to adequately answer hostile or challenging questions posed by a court.
Lawyers love to talk, and some attorneys may think that speaking more during oral arguments means that a client’s arguments will get the best consideration by a court. Nevertheless, there are numerous situations when it makes sense for lawyers to speak less during oral arguments.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.
