Lawyers love to argue, or so people think. I laugh sometimes at how lawyers talk to each other. We are a pretty rough and tumble bunch, especially now that civility among lawyers has largely gone out the window. If I talked to you the way I have to talk to other lawyers (or the way they talked to me), we probably would never speak again. Yet lawyers bark, growl, and threaten…and then go have lunch together. It’s all a bit weird.
That includes arguing in court. The way in which to present a legal argument is quite different than what you see in television shows and movies about lawyers. We don’t have a pre-set script with a known reaction from the opposing side or judge. So much is unknown and unknowable when heading into court to present a legal argument.
And most people (lawyers included) fail to focus on the right stuff when arguing to a judge. Being a parent, I see most arguments between lawyers in court as two kids whining about “who started it.” That is not the way to convince anyone of anything. And like a parent, most judges end up punishing both parties when they can’t figure out who is right and who is wrong.
Fortunately, there is a better way. To increase your chances of being heard, and being convincing, you have to spend a lot of time preparing your argument beforehand. The key ingredient to an effective argument is focus. You have to focus on what really matters. What do you want the judge to do? What legal authority can you point to in support of your request? Why is your result the right result? And how can you present all of this in the shortest amount of time possible?
Most of the time, people (again, lawyers included) get so bogged down in the minute details of their own case, that they cannot state a clear, concise position to the judge. It takes hard work, discipline, and harsh criticism to force an overly detailed argument into a simple work of argument art. As Mark Twain once said “sorry this letter is so long, I didn’t have time to make it short.” Indeed, it does take time to make it short. And most people stop trying to hone their position before they achieve simple beauty because it is just too much work to get there.
Hard work can pay off, however, because a simple argument is a persuasive argument. If you can simply state what you want, the law that supports you, and why your view is reasonable, you win (most likely).