Advocacy: Oral lex

This week, we kick off Arguably the Best, our year-long series on improving your litigation skills. We will have the wisdom of practitioners across the country on such varied topics as this week’s oral advocacy, practising in front of civil juries, tax litigation, and more.

You’re going to court/tribunal/mediation. Does oral do it for you? Written better? Oral lex, better than between the sheets (of paper of course — your written argument), or vice versa? Both will help you score of course, but in the meantime here’s 10 do/don’t tips for improving your oral lex skills (I actually started with 69 [tips] but whittled them down to 10).

Oral argument: you need it — it’s the KY of litigation success. It’ll slide you way past first base, all the way home, every time.

Oral advocacy, does it matter/make a difference?

Former Supreme Court of Canada justice John Sopinka on the relative importance of oral versus written advocacy:

	Motion/Trial	Court of Appeal	Supreme Court
Oral	75%	25%	5%
Written	25%	75%	95%

Current SCC Justice Louise Charron at the Cambridge Lectures in 2007 was asked: “Given the amount of time and our client’s money that counsel spend preparing themselves for oral argument, does it make a difference?” She answered: “Not very much.”

Practical psychology No. 1: Think like the judge

Baseball player Ted Williams always got into a pitcher’s mind days before a game. Similarly, when preparing for oral (or written) argument try and think like a judge. Change places with your judge, and keep three things in mind:
•    in a judge’s day many matters are competing for his or her attention;
•    an initial first impression is critical in the ultimate hard sell to the court;
•    and an appeal court will not afford the same luxury of time that you enjoyed at trial.

Practical psychology No. 2: Tell it for the judge that’s going to hear it

At a basic level your story (every legal case, no matter how arcane, is a story) has to make sense to the judge in terms of their personal perceptions and attitudes about life. It has to be consistent with what they think is right and what they think is wrong.

Understand that strategically you have to make the judge part of your thinking processes — part of your team. The “deal” you propose to him or her must work for both parties, you and the judge.

When the bird and the bird book disagree: believe the bird.

Practical psychology No. 3: Gender differences in oral argument

If you go to motions court a lot (the courthouse in my town is halfway on my bike/feet to my office, so I sometimes drop in for the 10 a.m. Lions v. Christians show in motions court), you may notice the standard male form of argument:
•    “Here’s the conclusion I’ve got figured out for you judge.”
•    “Your job is to merely agree, with me.”

And the more common female form:
•    “Houston, we’ve got a problem.”
•    “Here’s the problem: A, B, C.”
•    “Here’s what I’ve got on my side, here’s my strengths, here’s my challenges as well.”
•    “There are three ways we can deal with this: X, Y, Z.”
•    “Z is better because of R, S, T.”
•    “Come on over, join in, and help us find a workable solution here (probably Z).”

The latter form of “argument” wins more motions.

And don’t merely be your client’s mouthpiece in court. The judge is your (deciding) audience, not your client. Don’t be like the cymothoa exigua, a parasite that attaches itself to the tongue of the spotted rose snapper fish, atrophies the tongue, and takes over.

What to say or not say first

Don’t squander your first opportunity for persuasion by using clichéd and banal introductions that turn the judge(s) off or render them neutral/politely disinterested. So forget all that “in my respectful submission stuff,” there’s only so much respect that even judges can absorb.

Don’t do the far-too-common “procedural history” opening (i.e. summarizing all the prior motions before the one you’re in court for that day). That’s like hitting the accelerator with the car in park.

By definition, you’ve only got one chance to make a good first impression, or, if you’re mid-list in a busy motions court it’s more like shooting a bear at close range:  you’ve only got one shot and you can’t afford to miss. What you say first when you stand up is likely the most important thing you’ll have to say in that motion.

Always use positives, not negatives, in your language. Lawyers often use negatives to diss the other side/their argument: If you say, “This isn’t about X, Y, or Z,” the judge thinks, “Probably is.” When someone says, “It’s not the money, it’s the principle.” It’s always the money.

One opening that always works (for me)

A good way to start that first paragraph that helps you take off your lawyer’s hat and avoid the legalese-type intro is to simply start with: “This case is about . . . ”

My own personal technique is to pretend to myself I’m at Tim Hortons (I take a medium double double) and the person behind the counter knows I’m a lawyer on my way to court and asks me what my case is about and because there’s a lineup behind me I’ve got 20 seconds to tell her or him in simple, ordinary language what it’s about.

The trick to oral argument is there’s no trick (be yourself)

Be yourself when you talk or write. Who you are is more powerful than who you want to be. Forget the “We would submit” or the “With the greatest of respect” intros, that’s just filler. A more individualized style is more interesting and more credible to the listener or reader. Cowboy advice from Arizona: always drink upstream of the herd.

As hokey as this sounds, be yourself, don’t be a bad Elvis impersonator.

Only one thing matters (to the judge)

Only one thing matters to the judge: “What am I doing here, and what’s the question I'm supposed to answer?” Until the judge figures that out, he or she is not really going to pay that much attention to your argument. The key to influencing judges and winning cases is to focus your attention on the key issues as soon as you get in the door. In order to effectively do this, identify the issues early and let everything develop out of that.

To speak plainly, barfing everything at the judge — “Here’s all the stuff that happened in this file, and here’s all the law that I could drag up, and could you please sort all of this out for us, and while you’re at it give us a reasoned coherent decision” — rarely works, yet it’s commonplace in motions court. If you’ve got no theme, no structure, no opening, and thereby tick the judge off right off the bat, it’s a tough row to hoe thereafter.

Throwing everything at the judge is not your job, and not his or her job to fix your mess. Get some focus: don’t be as confused as a thirsty baby at a topless bar.

And if your case (both facts and law) is more crammed than a Wal-Mart sales bin, un-cram it. That’s your job.

End (of oral argument): have a conclusion

Make sure there is a conclusion. You don’t put your hand in the air until the puck’s in the net. Don't just end by outlining the relief requested: remind the court why relief is required in your case.

A good closing will encapsulate two or three compelling reasons for the court to adopt your position. In brief, make your conclusions clear and make your reasons explicit. What you are really trying to do is draft the judge's decision.

End of this (non-paper): pigs

And what if the lawyer on the other side is high up on the a-hole Richter scale? Always remember the Two Pig Rules (write them down, or get them tattooed, one on each palm):

Pig Rule 1: Never wrestle with a pig. You only get dirty; and the pig enjoys it.

Pig Rule 2: Never try to teach a pig to dance. It wastes your time; and it only annoys the pig.

Eugene Meehan is a partner and head of the Supreme Court practice group at McMillan LLP in Ottawa. He was executive legal officer to the Supreme Court of Canada from 1990 to 1992. Get in touch with him at [email protected].