The Art of Persuasion Written and Oral Advocacy Honorable Sarah S. Vance Honorable Nannette Jolivette Brown Honorable Susie Morgan HONORABLE JANE TRICHE MILAZZO

ART OF PERSUASION IN CHAMBERS IN YOUR WRITING IN COURT Status Conference Pretrial Conference IN YOUR WRITING Request for Conference Pretrial Order Motions and Memoranda IN COURT Oral Argument Trial A LITTLE LAGNIAPPE A little something extra

Status Conference Your written request How do I initiate a status conference Be specific in your request What are the positions of the parties Have you met and conferred? I’ve requested a conference and something new has arisen

Status Conference Your appearance This will likely be the Judge’s first impression Your demeanor Be yourself Be a problem solver Be mature Be Prepared Have your file and know your case, expect questions Please don’t Overreach (lost credibility is hard to recover) Be rude or interrupt Ambush your opponent or the Court Abuse the privilege

Pretrial Order Your written Pretrial Order What is the state of the law? Are the factual issues clearly established? If you don’t agree, can it really be uncontested? Have you been reasonable in stipulations? Are exhibits / witnesses clearly identified? Is this a serious objection? Have you met and conferred?

Pretrial Conference Be prepared to discuss your case Objections to the exhibits Deposition testimony Scheduling issues Motions in Limine Settlement status Time limits If you don’t know…now is the time to ask! Must I stay at podium? Does the judge allow bench conferences? How does the judge want objections raised? Ask about an equipment tutorial

Written Motions and Memoranda Start with an outline Please stay focused What is relief do you seek? Let the Judge know up front Lay out the facts relevant to the issue Stay focused on the facts that are pertinent to the motion Put your best argument first Lay out your best argument, don’t hold anything for later Address the problems with your argument

Written Motions and Memoranda Argument requires a careful application of the law to the facts Explain the law to the Court – don’t assume Cite to the record – specifics please Cite cases in order of precedential value String cites – please include parentheticals Avoid hyperbole and immature quips or insults Reply Brief Is just that - a reply Don’t blindside your opponent or the Court

Oral Argument Do not read your brief Be prepared with 3 or 4 sentences that encapsulate your argument Anticipate questions Answer the questions or advise if you can’t Ask for time for additional briefing if necessary (don’t expect it) Be prepared to discuss cases cited by your opponent Be respectful Speak loudly and slowly Be assertive, not aggressive

Oral Argument If there is a new case… If you are winning It better be new! Provide it before oral argument If you are winning Sit down! Never speak from your seat or the table unless instructed to do so

Trial Be organized Be prepared Decorum Come early – stay late. Have someone assigned to verify exhibits daily. Be prepared No one should know the facts and state of the law better than you Decorum Cross examination v. abuse Comply with pretrial rulings Be respectful Handle adverse rulings gracefully

Trial Be sure you have worked through any technology issues Please test all equipment before the trial Avoid frivolous objections Your opponent is a bully Build your record Stay above the fray

A Little Lagniappe Exercise balance Use strong language Be accommodating, but not a pushover Use strong language Be direct / concise Contacting chambers Know your judge Visit the website Never demean opposing counsel Dress appropriately Pick your battles!

Talk Amongst Yourselves… Strategies for dealing with difficult counsel Status conference ambush Pretrial order difficulties Pretrial ruling violations Misrepresentations to the Court Sexist remarks

Talk Amongst Yourselves… Strategies for dealing with difficult judges Won’t rule Won’t control proceedings Orders issued in chambers outside of record Rude and condescending In front of your client In front of the jury