News

The Art of Argument

By Debra Bruno

October 19, 2016

debators

In this season of debate, this might be a good time to see what we really know about the art of argument. 

We checked in with some of D.C.’s deans of dispute and leaders of litigation to figure out what they’ve done to win a case, convince a judge or jury, or simply score a few legal points. 

To be sure, the finesse that a top litigator might use in a courtroom is a far cry from political debate, and we are not going there. Nevertheless, this still feels like a good time to look at some of the tips from those who have spent long enough and made enough mistakes to pass on words of wisdom. 

Sidley Austin LLP star Virginia Seitz—mentioned in 2008 as a possible U.S. Supreme Court nominee—teaches a seminar for new associates that she calls “Top Ten Tips for Oral Arguments.” She has a few pointers. 

  • Know when to stop talking. Seitz recalls one of her earlier cases, a district court argument about a pension plan, which she had worked on for two weeks. She knew her case cold. What she ignored, though, was the signal that the judge was giving her when he verbally destroyed the opposing lawyer. Even so, Seitz could not let it rest. “What I did was take the judge’s time when he was signaling to me in every possible way that I should just not talk,” she recalls. She found out later that the judge was not pleased. Luckily, she still won the case. 
  • Don’t focus on yourself; focus on your client. “If you’re really worried about your own experience, you won’t have the right frame of mind,” she tells nervous young associates. However, she adds, that pointer is “not at all true in political debate.” 
  • Use the “let me try it this way” approach. This works best when you feel an argument is not getting through. Rather than moving on to a new topic or hammering home the same point, trying a different approach shows you’ve been listening and “understand that it didn’t work as you hoped it would,” she says.

Arent Fox LLP’s Barbara Wahl, a commercial litigator, has some other pointers, although she points out that there is a “huge difference” between arguing a motion and doing a jury trial. Even so, she offers a few tips. 

  • The “gold standard” in preparation is to run a moot court, Wahl says. “If you have the luxury of having difficult, smart colleagues who are willing to put you through your paces, your argument will be better,” she says. 
  • Know your audience. If the “decider” is a judge in an appeals court, for instance, the focus will be making a new law in that area. In that case, you’ll be arguing something that would go beyond your own case and you need to think in that way. In jury trials, the focus would be totally different, she says. 
  • Be prepared, and don’t be afraid to ask what might seem impolite. She recalls a case in which she didn’t ask a crucial question during a deposition: whether a witness had been convicted of a crime. “If I had asked what is an uncomfortable personal question at a deposition,” Wahl recalls, “I would have had time to figure it all out, and research the material.” Then again, this case took place before the age of easy Internet searches, so missing that part would be even more inexcusable today.

Matthew Martens of WilmerHale LLP, formerly a top litigator for the U.S. Securities and Exchange Commission, has one crucial point for young lawyers.  

  • Remember that “judges are people, too,” he says. “Many times young lawyers think they should argue careful legal points, because judges are lawyers and law is what carries the day.” But the truth is that “a good story beats a good legal argument any time.” Judges want to know what the story is. When Martens was a young associate, he was in a lawsuit against an insurance company. Martens says he had a “very technical argument” while his co-counsel “launched into this compelling story about how his client had purchased insurance in the hopes of having the necessary coverage.” He adds, “the judge just seemed enraptured with his story.” That moment 17 years ago, which he won, “is forever stuck in my mind.” 

Amy Wigmore, a vice chair of WilmerHale’s Litigation/Controversy Department, notes that this season’s debates seem to break many of the courtroom rules. In court, she notes, do not interrupt a judge or your adversary. “All of us can recall a time when we’ve jumped the gun and started talking before the judge finished” or interrupted the adversary. “That’s frowned upon,” she says. Here are some other pointers. 

  • Answer the question. Again, she notes, this might be a big difference from political debate. “With time and experience, you learn to answer the question directly,” she notes. If it doesn’t help your case, the goal then is to “weave toward the affirmative point you want to make,” Wigmore says.  
  • Be prepared on both the facts and the record. A judge might ask where in the record he could find a piece of information, so the lawyer needs to have an outline not just of the points, but where they can be found, she says.  
  • Keep it simple. “It’s a great idea to go into it with a maximum of three points and themes you want to address,” she says. “You only have a limited amount of time.”
  • Remember the big picture. Wigmore recalls a patent case in which the judge asked out of curiosity, how does this device work? “I was happy that I had spent some time working with the company” so that she understood how the device functioned, she says. “It would have been quite embarrassing if I didn’t have a response.”