We were recently interviewing a pool of candidates for an associate position at our firm. After all the interviews, we discussed the various interviewees. For one of them, one of the first concerns was this: “I’m not sure they’d know when to stop arguing in front of the judge.”((While I do not endorse they use of “they” to refer to a singular person (even though I recognize that it is gaining increasing acceptance), I found it to be the best way to conceal the gender of the individual being referred to.)) And you know what, that can be a real problem!
When to Stop Arguing Your Point
At oral arguments, you need to communicate to the Court both your position and the factual and legal context that support it. Sometimes that takes a good deal of explanation, and sometimes it doesn’t. Hopefully (but not altogether likely), the judge has already read the parties’ briefs before the hearing and has a fair grasp of everyone’s contentions. During these hearings, the judge will frequently exhibit body language that gives cues to the speaker. Here’s an important one: when the judge begins regularly nodding his head in agreement with your points, it’s time to wrap things up and get out.
I have seen too many lawyers either miss or disregard the cue and continue to barrel through their unnecessarily lengthy argument. And on more than one occasion, I have seen a lawyer talk himself right out of the court’s good graces and right out of winning his motion. Some folks just can’t help but to say everything word they came to court intending to utter. It’s a bad habit. And it can be a costly one. Watch for cues and know when to stop arguing your point.
Asking One Question Too Many
Similarly, lawyers have this insatiable desire for what is known as a “Matlock Moment”. That moment when you have the witness on the ropes, and you move in for the kill shot despite the fact that you’ve already made your point. But (and this never happened to Matlock) you’ve underestimated your opponent, who is a counter-puncher. And your intended kill shot instead gets you knocked out. Because you wanted your Matlock Moment, after which you could have looked over to the jury with a smirk and a knowing look, you’ve gotten a detrimental answer.
A lawyer needs to know when he’s made his point, then move along. There are times when it’s best to leave the last question unasked. Maybe you’ve already gotten enough information that your point has been made. Perhaps you don’t know the answer is going to be. Or there’s a possibility you’re up against someone who’s even more wily or clever than yourself. Regardless, a lawyer needs to recognize when it’s time to sit down without have asked one question too many. The jury saw where the road was leading, and you can always remind them during closing arguments.
Both of these issues, arguing your points and questioning witnesses, come down to restraint and situational awareness. Being obtuse and oblivious can cost you dearly.
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Photo by Adam Arroyo.
