More cases are won, or set up for a win, in the pre-trial context; and this largely occurs in Motions practice. There are two arts to Motions practice – drafting and the subsequent oral argument. It is for the latter that law students, novice lawyers, and some experienced lawyers should turn to Point Well Made (NITA, 2017).
Point Well Made provides detailed guidance on all aspects of presenting oral argument on a pending motion. It is co-authored by the Chief Judge of the Indiana Court of Appeals, the Honorable Nancy Harris Vaidik, and Rebecca Diaz-Bonilla, an attorney and internal communications consultant who is also on the NITA faculty. Point Well Made offers in-depth tips and information on how to successfully argue a motion, providing the reader with invaluable insight as to the judge’s perspective on what constitutes a successful oral argument. It also provides the reader with useful exercises, real-world examples, and practical suggestions for preparing and presenting oral argument as well as how to respond to specific questions posed by the court. Point Well Made is an excellent resource for both new litigators and law students who wish to develop expertise in arguing motions.
The book is organized chronologically, beginning with preparing for the hearing all the way through to presenting rebuttal argument. The authors also provide in-depth commentary on topics including (1) knowing your audience: the judge; (2) developing an effective theme for the presentation; (3) arguing the facts effectively; (4) presenting the governing law persuasively; (5) responding to questions; (6) organizing the presentation; and (7) tips on effective argument styles. Each chapter is concise and straightforward, with many practical tips and pointers as well as exercises to assist lawyers in further developing their oral advocacy in the context of Motions practice.
The authors identify four factors that guide a judge’s decision making process, including a desire for fairness, a fear of reversal, a desire for resolution, and the need to be consistent. They then provide the reader with concrete suggestions for appealing to one or more of those concerns during argument, including suggested opening lines for each type of argument. Real-world examples are used to explain the concepts involved, such as dissecting the facts section of a recent United States Supreme Court decision to illustrate that the facts should be presented in a way that leads the reader to the correct result without reference to the law that governs the dispute. Readers also receive abundant practical pointers, such as strategies for handling an individual hearing versus a “cattle call” argument, responding to a hostile judge, and even how to stand properly at the podium for the most impact during the argument.
Perhaps its most important chapter is on how to effectively respond to the court’s questions during argument. The authors provide the following six-step approach to answering questions: (1) listen to the end of the question; (2) pause before you answer; (3) ask clarifying questions, if necessary; (4) directly answer the question first; (5) explain your answer; and (6) transition back to your argument and your strengths. The authors then break down each step and provide the reader with specific tips and guidance for each step in that process. They also detail the various types of questions to anticipate at argument, including softball questions, genuine inquiries, hostile questions, hypothetical questions, and “rabbit hole” questions. Suggested responses to each type of question are provided, including specific ways to word a response depending on the type of question being posed as well as how to handle questions for which the attorney does not know the answer or that are beyond the record. In that same chapter, the authors provide detailed advice for dealing with hostile or skeptical judges, bored judges, or judges who are confused as to the governing law.
While much of the guidance in the book is detailed, practical, and useful, it is geared towards litigators who do not have much experience with motions practice or handling oral argument. Seasoned litigators will benefit, however, from some of the more nuanced tips that are offered, such as tailoring arguments to particular concerns that motivate the court. In addition, the authors provide terrific guidance on effective presentation styles, which is beneficial even to seasoned oral advocates. Finally, Point Well Made is also a great resource for law professors and other legal educators who teach in the areas of trial advocacy, oral advocacy, or motions practice. It contains excellent examples, exercises, and suggestions that can be easily incorporated into the classroom or other legal training. In sum, Point Well Made is a valuable resource that provides both law students and practitioners with significant advice and tools for successfully arguing motions.
This review was authored by Professor Mary Levy, Temple Beasley School of Law