There has been so much of value written on the subject of oral advocacy that it would be impossible to review these efforts in a short paper. For the purpose of discussing oral advocacy in motions court, there are several approaches that warrant emphasis: (1) put yourself in the position of the audience; (2) the importance of preparation; and (3) the need for focus.
Know Your Audience
In his classic article “The Argument of an Appeal” (1940), 26 A.B.A. J. 895, U.S. Supreme Court advocate John W. Davis emphasized the importance of putting yourself in the position of the audience, and in effect changing places with the Court in preparing an oral argument He said: “If the places were reversed and you sat where they do, think what it is you would want first to know about the case. How and in what order would you want the story told? How would you want the skein unravelled? What would make easier your approach to the true solution.” He went on to provide this interesting metaphor: “[i]n the argument of an appeal the advocate is angling, consciously and deliberately angling, for the judicial mind. Whatever tends to attract judicial favour to the advocate’s claim is useful. Whatever repels is useless or worse. The whole art of the advocate consists in choosing the one and avoiding the other.”
While these comments were made in the context of appellate advocacy, they apply equally here. As an advocate in motions court, you are angling for the mind of a busy Master or Judge called upon to deal with a long and varied list of procedural issues. These skilled decision makers are acutely aware of their role under the Rules of Civil Procedure: to ensure that the parties proceed expeditiously to trial on a level playing field, with access to the information and documents needed to make informed decisions about settlement or to avoid surprise at trial.
The implications of this suggest the need for simplicity, clarity and focus in the preparation of oral submissions. This might involve an outline of an oral argument as follows:
(a) get straight to the point;
(b) indicate what the motion is for;
(c) tell the Court the points intended to be made;
(d) state only the facts necessary to put the relief sought into proper context;
(e) what is the legal test;
(f) why has the test been met;
(g) what is the precise relief sought.
Putting yourself in the position of the Court also suggests a style of advocacy that is as simple as possible, and might involve the following:
(a) be yourself;
(b) speak slowly;
(c) if nerves get the better of you, write out and read the first few sentences of your presentation. Otherwise avoid reading;
(d) make eye contact with the Court;
(e) have a point form list of notes of the points you intend to make;
(f) in a margin of your notes, have the page references to important parts of the record you intend to refer to, or about which questions might be asked;
(g) bring the attention of the Court to any crucial facts. Read the relevant passage or wait while the Master or Judge reads it;
(h) bring the attention of the Court to any crucial authorities. Highlight the key passages;
(i) do not overdo either one of these last two points. Keep in mind brevity and simplicity;
(j) answer questions as directly as possible. Don’t postpone answering questions.
While these general principles can be applied to all motions, different motions call for more or less emphasis on these points. For example, a motion under Rule 21 for determination of a question of law, a motion for summary judgment under Rule 20 or a motion for an injunction under Rule 40 will be more akin to an oral argument in an appellate Court. Factums are required for these motions, and they will require a more intensive review of the facts and authorities. Routine motions, such as amendment of pleadings, undertakings and refusals, or extensions of time for service should be dealt with as quickly as possible, with only minimum reference to the facts and law needed to obtain the relief sought. Masters and Judges will be intimately familiar with the legal test. They need only be told why the test has or has not been met.
The Importance of Preparation
As with all oral advocacy, preparation is the key to success in motions court. Being able to distill the points down to their essence requires time and careful thought. It is important to have the courage to discard what is not strictly necessary. Devoting the time needed to hone the argument to its critical essentials will pay dividends, and this requires intimate familiarity with the motion record. In preparing an oral argument, it is also helpful to anticipate problem areas that might be raised by the other side and questions that might be asked by the Court. Having ready access to those parts of the record that deal with these areas will engender confidence in counsel. This too can only come with careful preparation. Further, establishing a reputation for being thorough and even-handed will stand you in good stead in future cases.
The Need for Focus
As mentioned above, being able to identify the key issues and to focus an oral argument down to its essence is an important aspect of oral advocacy. Given the time constraints inherent in motions court, it seems to me the need for focus is of particular importance there. By the time the motion reaches the courtroom door, the motion records and any necessary facta will have been delivered. You will have had the opportunity to review the crucial authorities. The issues in dispute will have come into sharp relief, and you are therefore in a good position to distill the argument to its narrowest point. The Master or Judge will appreciate the brevity of this approach, as it will be of assistance to the Court in arriving at the correct result. Ultimately, the facts and the law will dictate the outcome of the proceeding. I believe, however, that following the principles outlined above will help to achieve successful outcomes in motions court.