United States: Oral Argument – The Essential "Tools"

Last Updated: December 5 2013
Article by Robert A. Epstein

When I was a kid, I would always be careful to ensure that I had everything with me when I headed off to school.  Book bag?  Check.  Pens/pencils?  Check.  Homework done?  Hopefully.  Non-embarrassing lunch?  It depends.  I find that my wife and I are always making sure that my oldest son has everything with him as he heads out the door to his next day of first grade.  Since he has lost jackets, gloves, homework, and all of the above, needless to say that it is a work in progress.

Now that my classroom is the courtroom, the stakes are ever higher to ensure that I have everything that I need with me when I head into oral argument.  I was recently reading an article from Jay O'Keefe's "De Novo" blog discussing this very issue and thought, since we are all different lawyers with distinct habits and routines, each of us requires different tools to ensure that we are ready when the judge calls us up to the tables to commence argument.  Generally, if I don't follow that routine, something feels "off" – sort of a family lawyer OCD kind of experience.  So, with that in mind, when I'm headed for oral argument I typically can't live without:

  1. The motion file...and I mean the ENTIRE motion file.  On larger motions, I'm typically walking into court with a litigation bag, an over the shoulder bag, and usually my laptop bag.  A client recently asked me if I was traveling out of town afterwards.
  2. Legal pad and pens.  While it seems trivial, looking into my twelve bags and not seeing a legal pad gives me a sense of unease.  It has to be the long legal pad (white paper works, although yellow is preferred if I want to take things old school).  If I don't have the pad, then I am writing on the back of something, which just isn't the same.  Pens – obvious.  Blue ink – stands out on the paper when I'm writing my argument outline or taking notes about how I want to respond to the other attorney's arguments.
  3. A smile.  Seems silly, but in the dark doldrums of the courthouse, you would be amazed at how simply being friendly and getting to know the court staff, officers, and other courthouse employees can get you through the process time and again.
  4. Gum.  Before oral argument, I need it to wash away the taste of the...
  5. Mountain Dew.  That's right.  An early morning Dew (diet of course – I'm not an animal) goes a long way.  Alternative – Diet Pepsi.  Bottles only.
  6. Fruit snacks (Welch's – all other brands are fakers).  Depending on the courthouse (Bergen – small cafeteria in the courthouse, Essex – drugstore in the lobby, Morris...), I know where to get these for a quick snack while I wait.
  7. Laptop computer.  I referenced the laptop bag above – inside is the computer.  Family law judges are constantly directing attorneys and litigants at oral argument to "go outside and talk" to see if a resolution can be reached without the court having to hear oral argument and/or render a decision.  The laptop often comes in handy for drafting agreements or Orders, especially when my adversary is not a big believer in technology – i.e., the "who needs email?" adversary, also known as the lawyer who comments that I don't get to tell him the law because he has been practicing since I was in the womb.
  8. Rule Book.  Depending on the court, judge or motion, this may come in handy when a question is raised regarding a particular rule – especially when my adversary is dead wrong.
  9. A sense of calm.  Taking the zen-like approach before heading into the courtroom works well before starting a long and often exhausting oral argument with your client sitting beside you.
  10. My phone.  At this point in our lives, especially mine, not having my phone with me almost makes me feel like I am missing a body part.  Sad but true, but also handy if I have to call the office to address an issue on the very case that I am in court for oral argument.

I am sure that there are other things that I do or bring with that I am forgetting at the moment, but having your own routine and way about you when you head into the courtroom as a family lawyer will only make things easier on you.  Maybe you will even sleep longer the night before than you normally would (i.e., 4 hours of sleep instead of 3).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert A. Epstein
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