By Judge Nancy Vaidik and Rebecca Diaz-Bonilla
Have you ever had a misunderstanding with a friend and, instead of inviting clarifying questions to get to the bottom of the disconnect, you resorted to defensive lecturing? Because of your soap-box shenanigans, your friend asked no questions, the opportunity was lost, and the friendship fizzled.
Now imagine a different scenario: same misunderstanding with the same friend. You set a different tone, one inviting exchange and openness. Your friend asks questions, which reveal the heart of the miscommunication. You respond where it matters to your friend. Your answers clear things up. You may agree to disagree on certain points, but the friendship flourishes.
The first scenario mimics how most judges feel when a motion hearing ends. Most attorneys come to a hearing ready to lecture at the judge with a set agenda. The second scenario is what most judges crave — a hearing full of clarifying conversation with the advocate clearing up any confusion. Judges want to make sound decisions. Judges set hearings to give advocates a chance to discuss the issues and clearly lay out positions. Lack of engagement from a judge isn’t a gift, it’s a curse. You are there to hear why the judge may rule against you. A hearing is a last chance to persuade the judge, and the best way to succeed is through a fruitful discussion.
How does an advocate set a conversational tone? It starts with taking the time to understand what the judge cares about before you craft your motion. Judges are people too. They have baggage, political positions, legal leanings and an agenda of their own. Many tips about how the judge sees things can be discovered through creative research and polite calls to those who have argued before the same judge. Advocates who skip this critical step in motion practice risk the win by throwing argumentative arrows in the dark.
Next, offensively design the substance of your motion to spark discussion. Once the reply brief is submitted, an advocate has a picture of where contradictions or confusion exist. The judge and her clerks are wondering how to resolve the disconnect after reading the papers. They chat and debate in a vacuum. The hearing is an opportunity to set the record straight through a spirited discussion with the court.
The best-delivered arguments resolve contradictions and confusion by balancing law, facts and public policy. Knowing how to blend law, facts and public policy is a rhetorical skill, and one that can be learned. How something looks on paper isn’t necessarily how it sounds in argument. Striking up a conversation with a judge means you have to get off your notes and watch for non-verbal reactions. Effective note preparation should allow you to address details, stay flexible, and highlight the key legal and factual components of the case, all the while connecting with the judge. Divide your talking points with clear headlines and transitions so you can float in and out of your notes.
Kick off your presentation with the right stuff — a greeting, the ask, a theme and a roadmap. The pace, home base, facial expression and vocal tone of this “hello” tell the judge whether you are there to discuss or pontificate. Immediately make eye contact with the judge to let her know that you are receptive to her questions. Eye contact also allows you to gauge the judge’s reactions. Certain facts are critical, but you may notice that others irritate the judge. If you aren’t making eye contact with the judge, you won’t know if your legal explanation is overly complex or annoyingly patronizing.
When the judge asks a question, dive into the section of your notes where the judge shows interest, confusion or disagreement. Inwardly turn on the defensive coach but outwardly keep your poker face. There is a natural system to answering questions. Listen, pause, ask clarifying questions, if necessary, directly answer, explain based on the question type, and transition back to your themes and takeaways. Knowing which type of question is being launched by the judge matters: hypothetical, rabbit-hole, confused judge, guillotine … the list goes on. Your response should be in line with the type of question asked, and often the questions will not be a surprise because you have anticipated them. During the whole exchange, deliver your words to the judge with the attitude that you are seeking resolution and working together to solve the problem at hand.
Effective oral advocacy in motion practice involves an open discussion between you and the judge — it is a conversation that you embrace and celebrate. You connect to the judge using successful persuasion techniques. This winning dialogue does not just happen. It requires planning, preparation and practice.•
Judge Nancy Vaidik is the chief judge of the Indiana Court of Appeals and has 25 years of experience as a trial and appellate judge. Rebecca Diaz-Bonilla is an international communications consultant for lawyers and executives and has coached litigators for more than a decade in motions practice. They are co-authors of the new book, “Point Well Made.” The opinions expressed are those of the authors.