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Judge Dan Buckley ABTL January 14, 2020 1
Judge Dan Buckley
ABTL
January 14, 2020
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We judges want you to make great arguments
Help us make the right decision…
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How to prepare
What to do in the courtroom
What judges like
– and don’t like.4
Your walk back to your office?
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Win the day
Perspective
Leave good impression.
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Be old school.
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Know the judge.
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Issues tentatives?
Likes, dislikes?
Any leanings?.
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Know the file
Know the facts
Know the cases
-Be able to distinguish
-Respond to incorrect summary.
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Assume judge reads papers
Do NOT summarize or repeat.
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Be ready to go first or second
But this ain’t a good argument . . .
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Prepare outline
Requires careful thought.
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I didn’t have time to write a short letter, so I wrote a long one instead.
- Mark Twain
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No PowerPoint!
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Copy of key statute, case, critical paragraph.
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Courtroom attire . . .
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What is wrong with tentative or opponent’s argument?
Focus on essential facts, law, application, standard, burden, etc.
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1. Identify the critical disputed fact or authority
2. Give a concise reason why you are right.
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90% of time, you should win because of one or two reasons.
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Still . . .
1. Identify the critical disputed fact or authority
2. Give a concise reason why you are right.
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Start with a succinct outline
First sentence gives the ask
Second sentence gives narrow issue.
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Tell us when moving to next section in outline.
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Tell us what you will tell us, tell us, tell us what you told us.
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Give a verbal response . . .
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Cite the case, cite the record
Tell the judge where to find it
Thus, need to know where it is!.
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Take the judge by the intellectual hand.
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Avoid the kitten argument approach.
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To the Judge
To the adversary
To yourself.
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The ultimate basic point
Be persuasive . . .
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Respect the Court
Respect your adversary.
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Welcome questions.
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Answer the damn question!.
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Never postpone an answer
If you don’t know, say so
First word: “yes” or “no”
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Concede a losing point.
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Don’t act as if it is a miracle that you won . . .
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How NOT to act . . .
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Interrupt the judge
Including non-verbal.
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Argue after the judge has ruled.
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“This is a very complicated.”
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“What you don’t understand.”
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And the ultimate way?
“With all due respect, Your Honor.”
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Request further briefing if we cite new case
Right way to say will seek writ.
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Attack the opposing argument
-not opposing counsel
-“no matter how egregious the jerk might be”
This is what we see/hear . . .48
“Your Honor,” not Judge Buckley.
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There is no “I” in team
-nor in oral advocacy.
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I
I think . . .
I believe . . .
Don’t care!
Not as persuasive
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If you are winning,
SHUT UP!! . . .
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Prevent “snatch defeat from the jaws of victory”
Ask if the Court has any questions.
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If tempted, zip it . . .
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Master. The. Pause.
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The right word may be effective, but no word was ever as effective as a rightly timed pause.
- Mark Twain
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Speak in phrases, not whole sentences
Cannot give a better example . . .
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Provide audible punctuation
Don’t speed past important points
Add gestures to punctuate.
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Making Your Case: The Art of Persuading Judges by Antonin Scalia and Bryan A. Garner
The Articulate Advocate: New Techniques of Persuasion for Trial Lawyers by Brian K. Johnson and Marsha Hunter
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Thank You!!
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