Trial Magazine

For years, trial advocacy specialists have been reexamining juror decision-making. Behavioral science research shows that people generally make decisions based on intuition and then seek to justify those decisions with post hoc rationalizations.¹ In so doing, people place more weight on facts that tend to support their instinctive reactions, and they discredit or completely ignore what is inconsistent with their preconceived views.² Well, judges are people too, so the first step when briefing and arguing a motion is getting the judge to want to rule in your favor.

First, tell the court why you should win. Or tell the court why the opposition should lose. These are often, but not always, the same. This is primarily an exercise in thinking, not writing. What is your “I-Just-Can’t-Get-Over Issue”?³ What is the defense’s I-Just-Can’t-Get-Over Issue that you must overcome? Then craft that one clear and concise paragraph of essential facts, law, procedural history, and policy considerations or equities that will make the judge want to rule in your favor from an intuitive, commonsense point of view. In an opposition, you can be a little more on the nose: “The motion should be denied because . . .” or “The central fallacy in the defendant’s position is . . . ,” followed by your strongest bullet points.

If you’re not helping, you’re hurting. Many briefs tend to get bogged down in unnecessary factual or procedural histories. Facts that appear neutral can still be harmful because they divert attention away from what is important. If you need to address something unfavorable, include a clear and concise explanation of why it’s not dispositive. For example: “Although Jason’s mom purported to sign a written waiver on his behalf, such agreements are unenforceable.”

Briefs also tend to get stuck in extended discussions of the standard of proof. Sometimes a concise statement is required under the rules. But unless the judge is new to the bench, he or she likely has an established way of ruling on particular types of motions.

When it comes to case citations, think about their persuasive value. In some circumstances, legal authority is determinative. In other situations, the court likely will want a case—but mostly to support a decision that the judge has made based on something else.

Don’t use acronyms. Nothing is more annoying than coming across a “CIDCL” in the middle of a crucial sentence and having to stop to try to remember what it means. You don’t have to explain that when you say “Chevron” you mean “Chevron International Drilling Company, Ltd.” CIDCL is gibberish.⁴

Take the initiative. There is often one overriding issue in a case. Typically, the defendant will raise it in a summary judgment or other motion at 5 p.m. on the last possible day. Don’t let this happen. File the motion before the defense has a chance to, so that you frame the issue, make the first impression, and argue first and last.

Always answer the judge’s question. We all have experienced that cringeworthy moment when the judge asks a lawyer a question that he or she simply won’t answer. Don’t be that lawyer. Even if the answer is four or five points away, say, “Thank you, Your Honor, I was planning to address that more fully, but the short answer to your question is . . . .” And always ask the judge whether he or she has any questions. If I brought the motion, I typically do that once I am done with my argument before I sit down; if I am opposing a motion, I often do it right off the bat.

Don’t let opposing counsel throw you off. Particularly when opposing a motion, I am frequently tempted to go off script and respond to something that defense counsel has said. Whenever I do, I almost always regret it. Yes, you should have the flexibility to respond to the judge’s questions or comments. But when opposing a motion, you generally want to reframe the issue, so the judge is answering a different question than the one posed by the defense.

There are counter examples and exceptions to everything discussed here, but these simple tips will go a long way.

Steve Herman is a partner with Herman Herman & Katz in New Orleans and can be reached at sherman@hhklawfirm.com. 

Notes

1. See, e.g., Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion 32–83 (Vintage Books 2013). 
2. See, e.g., Daniel Kahneman, Thinking, Fast and Slow 79–88 (2013).
3. An I-Just-Can’t-Get-Over Issue is one of three foundation building blocks in Mark Mandell’s Case Framing^TM model. See Mark Mandell, Advanced Case Framing (AAJ Press 2019), www.justice.org/AdvCaseFramingBook.
4. See Mark Herrmann, The Curmudgeon’s Guide to Practicing Law 7 (2006).