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The Rites and Rights of Oral Arguments
MCLE Self Study
Edited by Barbara Kate Repa

Practice and Procedure
The Rites and Rights of Oral Arguments
Michael Paul Thomas

Oral argument is central to our legal tradition. Indeed, it has been opined that "Oral argument may lift up the fallen or cause the tottering to fall." (TJX Cos., Inc. v. Superior Court, 87 Cal. App. 4th 747, 754 (2001).) When attorneys appear in a courtroom to advocate their positions to the judge, according to one, "the judicial process loses its arid, abstruse, and remote character. A lively interchange between counsel and the bench, not possible by the submission of written briefs, may lead a judge to rethink his or her position and even alter the outcome of the proceeding." (Lewis v. Superior Court, 19 Cal. 4th 1232, 1266 (1999) (Kennard, J., dissenting).)

As another judge has poetically noted, "An oral argument is as different from a brief as a love song is from a novel. It is an opportunity to go straight to the heart!" (Kaufman, Appellate Advocacy in the Federal Courts, 79 F.R.D. 165, 171 (1977).) Or, put in a more down-to-earth fashion, oral argument can "clear the air"-and "is often as effective as a catalytic converter." (TJX Cos., 87 Cal. App. 4th at 755.)

PUBLIC POLICY AND DUE PROCESS
Despite the burden of heavy caseloads, recent opinions have emphasized the critical need for parties to have their "day in court." (Medix Ambulance Serv., Inc. v. Superior Court, 97 Cal. App. 4th 109, 112 (2002).) One noted cryptically that "Justice unseen is justice undone." (TJX Cos., 87 Cal. App. 4th at 755.) Courts must not only "be fair to all litigants," according to another opinion, but must also "appear to be so." (Solorzano v. Superior Court, 18 Cal. App. 4th 603, 615 (1993).) By allowing for oral argument, public visibility and accountability of the judicial process is significantly enhanced. (Mediterranean Constr. Co. v. State Farm Fire & Cas. Co., 66 Cal. App. 4th 257, 265 (1998).) Although oral argument "may not be the sine qua non for accurate judicial decision-making," admitted one court, "the quality and appearance of justice is always improved when a judge listens before he or she decides." (Cal-American Income Prop. Fund VII v. Brown Dev. Corp., 138 Cal. App. 3d 268, 273 fn. 3 (1982).)

Ultimately, because of basic due process concerns, courts have admitted that they are "on shaky ground where they entirely bar parties from having a say." (Titmas v. Superior Court, 87 Cal. App. 4th 738, 742 (1993); and Monarch Healthcare v. Superior Court, 78 Cal. App. 4th 1282, 1286 (2000) (criticizing court orders that "issue like a bolt from the blue out of the trial judge's chambers"); and Gwartz v. Superior Court, 71 Cal. App. 4th 480, 481-2 (1999) (lower court must allow oral argument on summary judgment motions-"Sometimes it seems as though we have to remind the lower court there is a judicial pecking order when it comes to the interpretation of statutes").)

In short, one court concluded simply that "It is wise public policy to conduct judicial proceedings in the sunshine, unless there is a very good reason not to do so." (TJX Cos., 87 Cal. App. 4th at 754.)

A RIGHT TO ORAL ARGUMENT?
All this notwithstanding, California courts have long held that parties do not have an automatic right to present oral argument on every kind of motion brought before a court. (Niles v. Edwards, 95 Cal. 41, 43 (1892).) And just because a statute provides for a "hearing" does not necessarily mean the parties must be given an opportunity to orally argue the case. (Medix, 97 Cal. App. 4th at 113.)

In the absence of a clear legislative directive in a statute regulating oral argument, courts will consider whether the statutory scheme-read as a whole, in context, and taking into account its nature and purpose-encompasses an oral hearing. That may include analyzing whether the judge acts as a fact finder or adjudicates any issues at the hearing, as well as whether any procedural remedies, such as making evidentiary objections or orally moving to continue, are provided for during the hearing. (Titmas, 87 Cal. App. 4th at 741; TJX Cos., 87 Cal. App. 4th at 751; Marriage of Dunn-Kato & Dunn, 103 Cal. App. 4th 345, 348 (2002).)

Additionally, courts may consider whether the proceedings involve critical pretrial matters that are of considerable significance to the parties, such as summary judgment, and that mandate a hearing. (See, Mediterranean, 66 Cal. App. 4th at 266-7.)

Finally, courts may look to whether the motion or other pretrial proceeding involves a real and genuine dispute or whether oral argument would simply amount to an "empty gesture." (See, Lewis, 19 Cal. 4th at 1258-9.)
The right to oral argument has been explicitly recognized in the following types of matters:
1. motions to quash or dismiss for lack of jurisdiction (Marriage of Lemen, 113 Cal. App. 3d 769, 784 (1980))
2. summary judgment motions (Brannon v. Superior Court, 114 Cal. App. 4th 1203, 1208-13 (2004); Mediterranean, 66 Cal. App. 4th at 265)
3. demurrers (see, Medix, 97 Cal. App. 4th at 113-15 (sexual harassment complaint against employer); TJX Cos., 87 Cal. App. 4th at 755 (whether suit should proceed as a class action))
4. discovery motions involving attorney-client privilege (Titmas, 87 Cal. App. 4th at 744-5)
5. motions to treat a party as vexatious litigant (Bravo v. Ismaj, 99 Cal. App. 4th 211, 225 (2002))
6. motions for pretrial writs of attachment (Hobbs v. Weiss, 73 Cal. App. 4th 76, 77-8 (1999)) and
7. motions for appointment of a receiver (see Cal-American, 138 Cal. App. 3d at 273, fn. 3).
Furthermore, as a matter of good practice, courts should allow oral argument whenever they are in doubt about any relevant matter "because that is precisely when oral argument may be most beneficial." (TJX Cos., 87 Cal. App. 4th at 755.) As Yogi Berra said, "You observe a lot by watching." (The Jurisprudence of Yogi Berra, 46 Emory L.J. 697, 701 (1997).)

Oral argument should also be allowed when a substitute judge is filling in for the judge to whom the matter is regularly assigned. "Hearing oral argument is one of the best ways for substitute judges to demonstrate to the satisfaction of the parties and the public that judicial responsibility has been exercised rather than abdicated." (TJX Cos., 87 Cal. App. 4th at 755.)

Although parties have a right to oral argument in connection with certain types of motions, courts retain substantial discretion to impose reasonable limitations, including limiting the time of argument. (Brannon, 114 Cal. App. 4th at 1211; Mediterranean, 66 Cal. App. 4th at 265.)

TIPS FOR STRONG ARGUMENTS
As the California Supreme Court has noted, "Any experienced lawyer who has doggedly waited through a tedious law-and-motion calendar understands the need, when his or her turn finally comes, to get to the point. There is no time for a leisurely exposition of

the facts or the law; it is necessary to speak out about what is important and to be silent about what is not." (Mediterranean, 66 Cal. App. 4th at 264.)
Here are some basic tips for getting to the point while making an effective oral argument.

Pay attention to the paperwork. Ninety percent of law and motion matters are won or lost on the papers submitted. Your oral presentation will be smoother, better received, and more articulate if you have laid the proper groundwork by presenting the best papers possible.

Be prepared. Familiarizing yourself with a motion while walking from the courthouse parking lot to the courtroom guarantees an ineffective oral argument. Always take the time, well before the hearing, to review the applicable facts, law, and arguments.

Be organized. Avoid fumbling for documents during the precious few minutes available for oral argument. Know the precise location of the moving and opposing papers in your file, as well as any other relevant documents. Those materials should be organized so that you can put your finger on them instantly. When you are arguing multiple motions, a separate file containing the relevant documents for each can be especially helpful.

Keep notes brief. Preparing notes for your oral presentation is a good idea, but keep them to a page or two. Though having pages of detailed notes may make you feel more prepared, they will be of little practical use at the hearing.
Review tentative rulings. Though not all courts issue written tentative rulings, many do make them available the day before, or just prior to, the hearing. Reviewing the ruling will enable you to focus your argument on issues that the court believes are most troubling or determinative.

Arrive early. The focus of your attention should not be getting to court but on making the best oral presentation possible. You will do a much better job if you get to court early, review your materials, and relax.

Learn about the judge. Talk with other lawyers who have appeared before the judge who is hearing your motion, or look up his or her biography in one of the publications compiling judicial profiles. Knowing the background, attitudes, and personal style of the judge you will be appearing before will help you gear your presentation for maximum effectiveness.

Start strong. When you approach the counsel table, stand on the appropriate side of the table. The tables are often marked "plaintiff" and "defendant," and if they are not, the plaintiff should stand on the side closest to the witness box in the courtroom. Also, be sure to clearly identify the names of the parties you are representing and their status as plaintiffs or defendants. Finally, when beginning your oral argument, briefly identify the nature of the case in a sentence-for example, "This is a disputed red light case at the intersection of X and Y in the city of Long Beach." Such a statement often helps the judge who is hearing multiple matters to mentally click in to the facts of your case and the issues involved.

Use proper names. The correct form of direct address to the court is "Your Honor," and the third person "the Court" is also appropriate. The court should not be addressed as "Judge."

Mind your image. Your goal should be to appear confident but respectful, both to the court and your opponent. Do not slouch, lean, or fidget. Speak in a firm but controlled voice. And, most important, always keep your personal feelings under control.

Speak audibly, clearly, and at a reasonable speed. Often attorneys will become so involved in the proceedings that they begin speaking too quickly, necessitating an unwanted, and sometimes embarrassing, interruption by the judge-or more often the court reporter-asking that they slow down.

Hold your tongue. Think twice about interrupting your opponent, and three times about interrupting the court. Judges are generally very fair about giving all sides an equal opportunity to present their arguments.

Heed the end. Once the court begins to rule, your oral presentation is over. Judges generally will not permit further argument, and to continue arguing makes you appear unprofessional and rude. It may be appropriate, however, to ask the court to clarify or explain its ruling.

Stay focused. Typically, you will be permitted just a few minutes to make your complete presentation at a law and motion hearing, so plan to be brief. Do not attempt to argue every fact or every issue of law; focus on the key facts or issues before the court.

Gauge tentative rulings. If the tentative ruling is in your favor, say nothing unless the court asks you a question, invites a response to your opponent's argument, or appears to have been swayed by your opponent's presentation. Of course, if the tentative ruling is against you, address it immediately and directly.

Do not repeat what's in your written papers. The court has already read and analyzed this information, and there is nothing to be gained by reiterating it. Your oral argument should be focused on engaging the court on key issues, addressing the court's legal or factual questions, and countering your opponent's arguments.

Give ground when appropriate. Some attorneys feel they must defend every argument, and they do so to the point of absurdity. Such an inflexible approach weakens your case. Be willing to acknowledge obvious weak points in your argument and counter with your strengths.

File supplements. When a previously unaddressed but pivotal issue comes up during oral argument, ask the court for the opportunity to file supplemental declarations or points and authorities. Although courts are selective in allowing supplemental papers, they will permit them in appropriate circumstances.

Be prepared to shift gears. You may need to make your argument flexible and responsive to the court, your opponent, and the flow of what is transpiring. If you are wed to a script or rigid in approach, your argument will be flat, mechanical, and unpersuasive.

Use questions from the court to your advantage. Do not view such questions as an attack on your position, but rather as an opportunity to address issues of concern to the judge. In fact, if you are properly prepared for the hearing, you will have anticipated some of the questions the court might ask and will have formulated appropriate responses.

Answer what's asked. When the judge asks you a question, it is safe to assume he or she wants an answer to that question-and not some other question. Respond directly and respond immediately. Saying, "I'll address that in a minute" or "That's not the issue here" is a mistake.

Don't argue with the judge. Attempting to convince a judge that his or her entire line of reasoning is wrongheaded will rarely be productive. Instead, acknowledge the court's areas of concern and demonstrate why those areas should be resolved in your favor. Try to work within the court's analytical framework, not demolish it.

Know when to quit. If you believe you have won the argument, be quiet, or you may snatch defeat from the jaws of victory. If you have lost the argument, let it go. There is nothing to be gained by continuing to argue after the court has clearly made up its mind.

Know what's at stake. You build a reputation with the court through your law and motion appearances. Though all judges do not remember all faces all the time, many are able to recall whether an attorney's past court appearances reflected-or lacked-preparation, credibility, and directness.

Michael Paul Thomas practices law in Newport Beach. He is coauthor of the six-volume California Civil Practice (West, 2003).

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