This article is about oral advocacy.Actually, it is about the first rule of oraladvocacy, which is “Know your audience.”To lawyers, know your audience meansknow your judge. For it is the judge to whomwe argue and who will decide whether, inthe words of Blockbuster Video, the client

will Go Home Happy.Judges come in every shape, size and tem-

perament, but the ones to beware of are theSeven Deadly Judges. These are the judgeswho can really ruin a lawyer’s day—that is,if the lawyer fails to grasp with whom he orshe is dealing. Like running a Class-5 rapid,

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The Seven D

arguing before a Deadly Judge is not impos-sible, but it sure can be discomforting if youapproach from the wrong angle.

The Seven Deadly Judges are not real. Ididn’t sit down and label the various judgeswho gave me a hard time over the years. Still,if you’ve litigated for any period of time, some

Randall H. Warner is an appellate practitioner at Jones Skelton & Hochuli, PLC.

BY RANDALL H. WARNER

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eadly Judges

of these judges may look a little familiar.

If you are a judge, rest assured that none ofthis applies to you.

Any resemblance to actual sitting jurists inthe State of Arizona is purely coincidental.

With that disclaimer, let’s meet the Judges.

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The StoneWallOur first Deadly Judge is the Stone Wall.

The Stone Wall sits quietly with a perfectpoker face while you and opposing counselmake your arguments. She might well beinterested in what you have to say, but youwouldn’t know it by looking at her. Youcould be reciting brilliant legal theory orShel Silverstein poems, and you’d still getthe same unflinching stare.

The Stone Wall never asks questions,which is what makes her so deadly. If there isone thing oral argument is good for, it’s asan opportunity to learn what the judge’sconcerns are so you can address them.Unfortunately, the Stone Wall robs you ofthis opportunity by giving you no clue whatshe is thinking—not even a single raised eye-brow or disapproving frown.

Your best strategy before the StoneWall is to get in and get out.Presumably you’ve made yourbest and most cogent argu-ments in writing, so unlessyou recently came up withsome brilliant new angle,nothing you add will bean improvement onwhat you wrote. Andbecause you don’t knowwhat the judge is thinking,your chance of mucking

things up is greater than the chance of justhappening to come up with the argumentthat sways the judge.

Of course, if your opponent raises some-thing new or particularly damaging, now isthe time to address it. But barring that, onceit becomes obvious the judge has nothing tosay or ask, hit the high points and then sitdown.

The InquisitorThe Inquisitor is very much the opposite ofthe Stone Wall.

Whereas the Stone Wall won’t tell youwhat she’s thinking, the Inquisitor tells youexactly what he’s thinking—and he doesn’t

want to talk about anything else.Before you can say, “May

it please the Court,”the Inquisitor jumpsin with a question

about the one issuethat’s bothering

him. It maynot be your

best issue. It maynot be an issue you

think is important. Itmay not even be an

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issue you want to talk about. But there youare, stuck in the Inquisitor’s clutches with noplace to hide.

There is a real simple way of dealing withthe Inquisitor: Answer the question. If youdodge the question, the Inquisitor willeither ask it again or assume you don’t havea good answer. You certainly aren’t going topersuade him to rule for you unless his con-cerns are addressed, so you might as well hitthem head on. Only then should you steerthe conversation back to the points you wantto make.

As annoying as the Inquisitor may be—we’d all rather hear ourselves talk thananswer some judge’s immaterial questions—he has done you a favor. He has put his cardson the table and told you what will or willnot change his mind. If you think theInquisitor is dwelling on the wrong issue,tell him so frankly and respectfully.

But only after you’ve answered his ques-tions.

The SticklerThe Stickler likes rules.

She likes the Rules of Court, and she likesher own special rules, written and unwritten.She likes when things are done by the book.

Play by the Stickler’s rulesand you’ll be fine. Fail to do soand you risk incurring the

Stickler’s wrath.As they say: When in Rome, do

as the Romans do. Does the Sticklerrequire 15-point font when theRules require 13-point? Fifteen itis. Does the Stickler want you torecite your oral argument while

standing on one foot? Better wearcomfortable shoes.

Ultimately, you may or may notwin on the merits. But as long as youfollow the Stickler’s requirements,you at least won’t be detracted by

unnecessary questions of form.Besides, following the Rules is always a

good idea anyway.

The WandererAs the song goes, the Wanderer’s the kind ofguy who likes to roam around.

Your motion may raise Issues A, B and C,but the Wanderer wants to talk about IssueD. The law may say one thing, but theWanderer is sure it says something else. Ifthe judge asks a question that sounds like it’sfrom left field, you just might be in front ofthe Wanderer.

The trick to arguing before the Wandereris to keep it simple. For one, the judge couldbe confused because your written productwas not as concise and straightforward as itshould have been. This is your chance to setthings right by hammering on your one ortwo main points.

And even if your pleadings were asclear as Lake Tahoe, you will only dis-tract the Wanderer by spouting abarrage of fine points. Even if youropponent recites the top ten listof reasons why the motionshould not be granted, you haveto bring the discussion back tothe critical one or two points andkeep the judge from gettingmired in things that don’t matter.

Of course, some judges are bet-ter at getting to the nub of the issuethan others. But at the end of the day,

it is the lawyer’s job to make sure the judgestays on track.

The ProfessorThe Professor is captivated by legal theoryand sees your oral argument as a chance tohave a fascinating scholarly discussion.

You may have rock-solid case law onpoint, but the Professor wants to talk aboutthe subtle distinctions between the Corbinand Williston views of contract formation.Being in front of the Professor is like havinga bad law school flashback.

When encoun-tering the

P r o f e s s o r ,there is aPlan A and aPlan B.Plan A is toengage inthe discus-

sion—that is,if you’re able.

If the Professorbelieves critical

legal studies hassomething to say

about your general indemnity clause, tell herwhy you agree or disagree. If you are in anappellate court, or if heady legal theory hap-pens to be at the heart of the issue, youshould have been prepared to discuss theo-retical niceties anyway.

But if, as may happen, the Professorblindsides you with the latest law reviewblather, go to Plan B. Plan B is a concessionthat you aren’t prepared to discuss that par-ticular issue, coupled with an offer to followup with a supplemental pleading.

Don’t think you can b.s. your way throughit. The only thing worse than not knowingsomething is getting caught faking it.

The AbuserAt one time or another, every lawyer hasstood face to face with the Abuser.

The Abuser is that one judge who seemsto derive peculiar joy from making lawyerssweat. The Abuser may shout at you, brow-beat you or ask a question the only possibleanswer to which is “I agree, Honor; I real-ly am an idiot.”

Maybe you deserve to be dressed down;maybe you don’t. But no matter how badthe abuse gets, you have to keep your eyeson the prize. That prize is getting the judgeto rule in your favor.

When you appear before the Abuser, justremember what Kevin Bacon said in

Animal House: “Thank you, sir, may Ihave another!” If the Abuser yells at

you, don’t yell back. Avoid the urgeto give smart-ass responses to

impossible questions (“No, yourhonor, I really don’t expect youto do what the law requires.”).Keep your calm. Keep your focus.And keeping hitting your keypoints.

When you’re all done arguing,the judge is going to have to ruleon the merits, and you’d ratherhe leave with a clear memory ofyour well-reasoned argumentsthan the pathetic vision of a lawyer who cracked under pressure.

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The InnovatorOur final Deadly Judge is the Innovator.The Innovator is a fountain of good ideasabout your case.

You’ve spent hours crafting your legaltheories, raising all the right issues andmaking your best arguments, but theInnovator suddenly comes up with some-thing you—or worse, your opponent—hadn’t thought of before.

This could be good news, but it mightnot be. If you are absolutely sure thejudge’s new theory helps you, go with it.Maybe the judge really did think of a goodangle that hadn’t occurred to you.

But there are some serious risks ofglomming onto the Innovator’s theory.For one, the judge might be wrong. Theremight be a perfectly good reason why thetheory doesn’t work, and you might notthink of that reason in the one and a quar-ter seconds you have to answer the judge’squestion. Or the argument might be a win-ner, but you waived it by not raising it inthe pleadings. If you have any doubt at allabout the judge’s theory, you are better offdancing with the one that brought you.

If the argument clearly favors youropponent, the right approach will almostalways be: “You raise an interesting ques-tion, your honor, but one that isn’t prop-erly before you.” If all else fails and thejudge continues to press her great theory,buy yourself some time to think by offeringto file a supplemental pleading.

Know YourAudience

The Seven Deadly Judges are, as shouldnow be clear, caricatures. No judge isalways an Abuser or an Interrogator,though most judges will take on one ormore of these styles at one point or anoth-er. The important point is that good advo-cates know their audience and tailor theirarguments accordingly.

Judges come in all shapes, sizes andtemperaments. But the advocate who failsto adapt to different judicial styles might aswell be arguing to a Stone Wall. AZ

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