Preparing, Briefing, and Arguing Your Case with a Judicial Opinion in Mind
The Bencher—March/April 2016
By Judge David W. Lannetti and Jennifer L. Eaton, Esquire
Have you ever received a judicial opinion and thought, “The judge didn’t understand my position” or “Wow, the judge completely missed an issue”? If so, you probably blamed the judge. Maybe you were justified in your position, but it is also possible that there were shortcomings in your advocacy, including, quite possibly, a failure to appreciate the judge’s perspective.
Thomas Jefferson believed in life-long learning and his mentality—that there is always more to learn—applies to the practice of law. Reviewing your trial practice may identify gaps that you can fill to be more prepared the next time you argue before the court. Although you can never guarantee a favorable result for your client, there are some things you can do to make it easier for the judge to rule in your favor.
Preparing: Understand Your Role in Educating the Court
Preparedness starts with understanding your audience. As the practice of law has become more specialized, it should come as no surprise that most judges—who are drawn from a pool of specialized attorneys—are not the generalists they once were. Consequently, with virtually unlimited subject matter jurisdiction, trial court judges frequently have to tackle legal issues with which they have little or no prior experience. Although legal research and judicial reflection certainly help overcome this deficiency, judges often must rely on the attorneys who appear before them to bridge precedential divides. Also, keep in mind that, like most attorneys, judges and their law clerks are busy people. They have limited time to review the contents of the file and read briefs before a hearing. You should appreciate the role you can play by offering your expertise and insight to the court.
It goes without saying that you need to understand the case—both the underlying facts and the applicable law—better than the judge. You should view your role as educating the judge and making it easy for her to rule in your favor. Taking the time early in the case to understand the factual background and legal terrain will benefit you throughout the life of the case. You must thoroughly research the factual issues you will present to the court to fully appreciate their significance. Becoming an expert in the applicable case law will help you craft your brief, contribute to a compelling oral argument, and ultimately persuade the court. You should be familiar with the cases in favor of your position and, even more importantly, with those cases that undermine your position.
An example of a failure to properly educate the court occurred in eBay v. MercExchange, 547 U.S. 388 (2006). There, the Supreme Court of the United States proclaimed that “[a]ccording to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test.” The problem, according to remedies scholar Douglas Rendleman, was that “there was no ‘traditional’ four-point test.” As remedies expert Douglas Laycock pointed out, because eBay and many of its amici curiae focused on, among other issues, preliminary injunctive relief (which does have a four-part test), the Supreme Court established new—and arguably faulty—precedent presumably in strong reliance on the incomplete information provided. According to Laycock, “The case was litigated by an all-star cast of Supreme Court lawyers, but none of them consulted a remedies specialist.”
Briefing: Connect the Legal Dots to Build Your Case
At the trial court level, filing a brief is typically at the discretion of the attorneys because most courts rarely require them, especially prior to a hearing. Although briefing may not be mandatory, there are several reasons why a brief is valuable to the court and you therefore should seriously consider filing one. A brief provides a landscape for you to identify a problem and offer a solution. As a brief writer, you have the opportunity to tell a story; although the story must, of course, be founded on legal authority, the way the story is told is almost as important as the content itself. The ultimate compliment to a well-written brief is to have the judge incorporate parts of it into her judicial opinion.
Associate Justice Antonin Scalia of the Supreme Court of the United States and attorney Bryan A. Garner write in Making Your Case: The Art of Persuading Judges, “The overarching objective of a brief is to make the court’s job easier. Every other consideration is subordinate.” With that in mind, provide the court a clear roadmap of your argument. You may think building suspense in your brief is a good idea, but it usually just frustrates the reader. Be upfront and forthright; unanswered questions are the enemy. Identify your position in the first page of your brief. Then, use each argument to persuade the reader why your position is the proper way to resolve the case and, if appropriate, to resolve future similar cases. Make sure that you recognize and distinguish counterarguments. By ignoring arguments raised by opposing counsel, you imply to the judge that they have merit.
Clarity is key. Be concise and deliberate with your word choice. Do not feel that you need to approach the applicable page limit. Avoid using big words when simple words will do, but be precise. Legalese is often unnecessary and usually undesirable, but using terms with inherent legal significance is appropriate and sometimes essential to make your point.
Recognize that the case is not over until all appellate avenues are exhausted. Tailor your arguments to make it easy for the court to rule in your favor and, at the same time, establish a clear record for appeal in case the court rules against you. Be direct and clear when you present your arguments. Keep separate arguments separate, lest the court inadvertently conflate your points.
Take the time to review and edit your brief to make it more readable for the judge. Such editing invariably will lead to elimination of words. As Dr. Seuss noted, “[T]he writer who breeds more words than he needs, is making a chore for the reader who reads.” Trim the content until all that remains is the meat of your argument. For example, the background section should include only those facts necessary to frame your position, and the number of legal arguments normally should be limited. Excessive information can be confusing, and it may distract the reader from your point.
Proofread your brief before submitting it to the court. You may find it useful to set the brief aside for a day or two and look at it again with fresh eyes. Consider asking a colleague to read it and provide comments. Having someone who is completely unfamiliar with the case review your brief may elicit constructive feedback regarding whether the arguments in the brief flow logically and whether the court is likely to have any unanswered questions.
Don’t underestimate the importance of your brief to a judge. Most judges review available briefs and then use the associated hearing to focus on questions that arise. For cases assigned to a particular judge, consider sending a courtesy copy of your brief to the judge’s chambers, in addition to filing it with the clerk of court. A courtesy copy serves as a friendly reminder to the judge about the upcoming hearing, notifies her that a brief has been filed, and provides her a nudge to read the brief in advance.
Arguing: Persuade the Judge to Rule in Your Favor
The first step to any successful hearing is arriving prepared. Bring extra copies of your brief and any cited cases so that you can offer them to the judge if necessary. Note, however, that it is usually not a good idea to rely on cases you did not cite in your brief. Many judges will view this as a shortcoming of your brief and as a form of sabotage on your opposing counsel and the judge’s law clerk, as opposing counsel and the judge understandably may be ill-prepared to respond to such new cases. Once in a while, you will come across a particularly persuasive case after your brief is filed and prior to the hearing; when this occurs, provide a copy to opposing counsel and the court as soon as possible.
Once at the hearing, start by introducing yourself to the judge and identifying whom you represent. Note that judges in many jurisdictions are not assigned specific cases and therefore may not see briefs until the day before the associated hearing. Recognize this limitation and look for clues during the hearing to determine whether the judge is familiar with your brief. If you determine that the judge has reviewed your brief, avoid parroting the brief’s language when arguing. Oral argument is a time to fortify your position, not bore the judge with information she already has before her.
Use the hearing to ensure the judge understands your position and why you are entitled to the relief sought. When you argue, be methodical. Recap your points, and provide clarification and additional explanation as needed. Spend most of your time on your strongest issues, and avoid, to the extent possible, arguing more than three points. Make sure you stay on track; don’t waste valuable time during oral argument on tangential issues. The only thing worse than an unnecessarily long brief, is an unnecessarily long oral argument.
If a judge asks you a question, answer it. Judges don’t take time during a hearing to ask questions unless they are seeking clarification on a specific issue. By using evasive measures and not responding to the judge or arguing that “those are not the facts present here,” you lose an opportunity to bolster your position by addressing her concern. The judge may be concerned about the effect of a ruling beyond the case at bar and therefore purposefully is probing beyond the facts of the present case.
The reality is that you should welcome questions. As Scalia and Garner point out, “Only when you are responding to a question from the bench can you be sure that you are not wasting your time—pounding home a point on which the court is already entirely convinced or clarifying an issue on which the court is in no confusion.” If it becomes clear—as a result of questioning or other clues during the hearing—that the judge does not intend to rule from the bench, and if you believe that it would be helpful to answer unanticipated questions that arose during the hearing, offer to submit a post-hearing brief.
Trial court judges have a great deal of discretion in ruling, which they apply to the facts and law as they understand them. Your job, to the extent possible, is to convince the judge that your version of the material facts and substantive law deserves the benefit of her discretion. In doing so, try to determine in advance how your particular judge thinks. Talk to other attorneys who have appeared before her and, if available, read the judge’s prior opinions to gain an appreciation for how she approaches legal issues. Although some judges look to limit their holdings to the particular facts, others focus on precedent and the concomitant future societal ramifications. The insights you glean about the judge may reveal what she found persuasive in the past and help you tailor your arguments.
It is always difficult to anticipate how a judge will rule, but approaching all aspects of the case with the judge’s perspective in mind will help ensure that the judge understands your position. Such a clear understanding should increase the likelihood that if there is a resultant judicial opinion, it will be favorable to you and your client.
Judge David W. Lannetti serves on the Norfolk Circuit Court, Fourth Judicial Circuit of Virginia, and is an adjunct professor at William & Mary Marshall-Wythe School of Law and Regent University School of Law. Jennifer L. Eaton, Esquire, is an attorney at Vandeventer Black LLP in Norfolk, Virginia, and a former Norfolk Circuit Court law clerk. Both are members of the James Kent AIC in Norfolk, Virginia, and Lannetti is president-elect of the Inn. The views advanced in this article are those of the authors alone and should not be mistaken for the official views of the Norfolk Circuit Court or Vandeventer Black LLP.
© 2016 Hon. David W. Lannetti and Jennifer L. Eaton, Esq. This article was originally published in the March/April 2016 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.