They say the No. 1 fear for most people, even more than death, is speaking in public. Now add to that the need to find, understand and then explain complex case law and you’ll understand why oral arguments can be the cause of night terrors for young lawyers everywhere.
One could argue that sifting through case law with shaking hands behind a lectern is a rite of passage for all attorneys who work in litigation.
Even late in my career as an advocate, I remember the stress of doing the research for an intricate motion, organizing the information into a palatable presentation and then presenting what I hoped was a cogent and persuasive explanation of my position. All this to say, oral arguments are no easy task.
Two years ago, as of this month, I was appointed to serve the citizens of Jacksonville as a Duval County judge. My days of giving oral arguments are in the rearview mirror as I now spend more time in the courtroom listening to arguments rather than making them.
Having had time to reflect, I have gained a new perspective I wish I had back when I was tasked with presenting to the court. I hope that by highlighting some observations from the bench, I can be helpful.
Be cautious when making legal arguments before the court with appeals to emotion or sympathy. These arguments do have their time and place, but they can also be distractions when it comes to a complex legal issue.
Judges are not result driven. In order to fairly and impartially follow the law, we must be process driven. It is not our role to place our fingers on the scale toward any given side no matter how sympathetic the position.
As U.S. Supreme Court Chief Justice John Roberts said, “I will remember that it’s my job to call balls and strikes and not to pitch or bat.”
A successful argument, on the other hand, informs the court about its own limitations. Being a judge is one of the few roles in which we find actual enjoyment in being limited. Provide us with a plainly written statute or a mandatory authority that binds our hands and we may thank you.
Finally, all good faith arguments should be presented to the court with the mindset that the court has not made a predetermination.
Attorneys have raised complex issues which have required me to return to the record of the arguments made by counsel. Some litigants appear to take for granted that I have already made up my mind.
The irony is that there I am, back in my chambers on a Saturday morning still considering their arguments. My point, resist the urge to read into the judge’s facial expressions or questions in an attempt to discern the tea leaves. Rather, don’t assume until the judge has ruled that they have decided. Advocate until the end.
Oral advocacy is an art and not a science. Different attorneys present with different styles. I have been very impressed by the professionalism I see on a daily basis here in the Duval County Courthouse and I hope this perspective will be of some value as you fight for your clients.