Oral Argument: Practice Tips by Karen Kimmey of Farella Braun + Martell

by Karen Kimmey from Farella Braun + Martell in San Francisco

Karen Kimmey has spoken at our annual Superior Court Boot Camps in San Francisco for more than ten years. Over that time she has provided a number of excellent resources for our attendees. Below is a short list of tips Karen wrote on Oral Argument.

 

  • Always check the tentative and be prepared to address any issues raised.
  • Check in with the court room clerk and be on time.
  • Treat the courtroom staff well.
  • Have a simple outline in front of you with key points and case cites.
  • Have brief remarks prepared but focus on answering questions.
  • Do not simply repeat arguments from your brief. Approach it in a different way.
  • Never address opposing counsel directly.
  • Do not interrupt opposing counsel or the judge.
  • Speak slowly. Don’t annoy the court reporter.
  • Avoid personal attacks or bickering. Judges hate it.
  • Know when to be quiet.
  • Come prepared with a proposed order.
  • Ask clarifying questions if unclear of what the court has ruled.

If you’d like to hear more from Karen, and listen to a program dedicated to motions, discovery and depos, you might be interested in this prior seminar at which she spoke:

9th Annual Superior Court Boot Camp: Discovery, Depos and Motions – Get it Right

You might also be interested in our upcoming 13th Annual CA Superior Court Boot Camp on October 12th, 2018 in Los Angeles and November 8th, 2018 in San Francisco. You can register there, or if you are reading this past those dates, purchase the audio package.

Top Tips For Demurrers

Steven Ragland, a partner at Keker, Van Nest and Peters has spoken at our annual California Superior Court Boot Camps almost every year since 2010.

At one of our prior Superior Court Boot Camps, Steven provided this terrific tip sheet for handling Demurrers. It contains suggestions regarding what you need to think about when filing a Demurrer, when writing the brief, and other things you must consider, including arranging for the court reporter, checking the tentative ruling, and preparing the order.

If you’d like to attend our 13th Annual Superior Court Boot Camp, coming up on November 8th in San Francisco, please go here. You can also pre-order the audio package for the San Francisco program, or purchase the audio package for the program just held in Los Angeles on October 12th, at the link provided.

But register quickly (if you see this post before November 8th, 2018) because we’re almost sold out in San Francisco.

Enjoy!

Tips for Demurrers:

I.  Initial Considerations – consider whether you should file a demurrer

A.  Defects in plaintiff’s legal theory must appear on the face of the complaint itself, or through judicially noticeable matters

B.  Only file if it serves a litigation purpose

1.  Expensive for client

2.  Plaintiff will almost certainly get leave to amend

3.  Demurrer will educate adversary

4.  Might result in a stronger complaint

C.  Read (or re-read) Weil & Brown, CCP, and local rules before drafting

D.  Get more time from Plaintiff if you need it (check rules for when stipulation is enough and when you need ex parte application/court order)

II.  Brief-writing considerations

A.  Have a Theme. Really, have a theme.

1.  After striking out before another tribunal, plaintiff tries its hand here

2.  No good deed goes unpunished

3.  A deal is a deal

4.  Here we go all over again (especially for successive demurrer)

B.  Make the Intro count

1.  The Introduction should tell the whole story in summary form

2.  It should tell the Court why you should win—both under the law and as a matter of justice/fairness

3.  After reading Introduction, Judge/law clerk should be convinced you win

C.  Organization matters

1.  Use headings/sub-headings

2.  Headings should be declarative sentences

a.  “This Demurrer should be sustained because the Complaint neither sets forth the material terms of the contract nor attaches the purported contract.”

b.  “The Complaint fails to join indispensable parties.”

c.  “This Court lacks subject matter jurisdiction because Federal Courts have exclusive jurisdiction over cases requiring resolution of patent law issues.”

3.  Headings should tell your entire story

a.  The Judge should be able to scan the table of contents and remember exactly what you are arguing

b.  If fact section is long, break it up

(i)  Your fact section headings can preview your arguments

4.  Spend the time needed to organize arguments

a.  If brief is not easy to follow, you’re more like to lose

D.  Reveal and deal with contrary authority

1.  Always address and distinguish all of your opponent’s primary cases (and secondary to, if possible)

2.  Don’t assume opponent won’t find the cases that go against you

3.  Candor is crucial

a.  Be honest about the hurdles you face, then explain how you clear them

b.  Evasiveness and misstatements of the law erode your credibility, and can lose your motion (never jeopardize your reputation)

E.  Lead with your strength

1.  If you have four arguments for demurrer, address strongest one first, then go down in descending order of strength

2.  If you have one really solid basis, don’t waste space/credibility with marginal arguments

3.  If opposing, take on defendant’s strongest argument first and eviscerate it

4.  On Reply, you don’t have to follow opposition’s organization

F.  Every brief should be a stand-alone document

1.  Write the Reply/Opposition so it makes sense even without reading any other brief (or the Complaint)

G.  Miscellaneous

1.  Don’t be nasty

a.  Opponent is wrong, not “lying” or “conniving” or “slimy”

2.  If you see an adjective or adverb, delete it (most of the time)

3.  Short, declarative sentences; eliminate passive voice

III.  Arrange for a Court Reporter

A.  Coordinate logistics with your adversary and agree to share costs

B.  Even if you lose, what’s said at the hearing may be useful to your client (e.g., successive demurrers, limiting / narrowing discovery, holding plaintiff to its theory, crystallizing issues for summary judgment)

IV.  Check the tentative ruling

A.  Check it as soon as it comes out (check local practice)

B.  Don’t forget—set an Outlook reminder

C.  Notify opponent if you intend to contest—check rules for deadlines and requirements for notice

D.  If you win tentative, sit on your hands

1.  Do not contact opposing counsel to notify (or gloat)

2.  Tentative will be adopted if no one contests

3.  Do not appear at hearing unless other side tells you it will contest—If opponent shows up at hearing without giving you notice, the court will not permit argument and tentative will be adopted…unless you show up

E.  If you lose, go argue like hell (but expect to lose)

1.  Always be respectful, but tell the Court why the tentative is wrong.

2.  Don’t just repeat what you said in your briefs

3.  Limited to issues raised in papers, but bring a fresh perspective and nuance

V.  Prevailing party prepares order

A.  Check rules for timing, details

B.  Be sure to set deadlines for Answer/Amended Complaint in the order if you want to deviate from standard timing provisions

C.  Might be able to get opponent’s sign-off of proposed order at hearing

Justice Entrepreneurs Project’s Pricing Toolkit

At Pincus Professional Education, we are committed to helping educate attorneys who work for legal aid firms and serve low-income populations. One of our partners in this effort is the Chicago Bar Association’s Foundation (Chicago Bar Foundation). Their Justice Entrepreneurs Project (JEP), is a small business incubator that helps newer lawyers start innovative, socially conscious law practices serving low and middle income Chicagoans. We wanted to share their Pricing Toolkit with you as they are continually providing good resources for attorneys.

From the Chicago Bar Association’s Foundation website: One of the core principles for the JEP program and JEP lawyers is to make legal assistance more affordable and transparent to low and moderate income people by offering fixed fees and flexible representation options to potential clients. The toolkit came about after the CBF discovered in the early stages of the JEP program there was a dearth of practical resources for lawyers serving the consumer market who seek to price their services by using arrangements other than the billable hour.

Thanks to a dedicated team effort of partners, volunteers, and staff, this toolkit is “Version 1.0” to help JEP lawyers and other lawyers who are interested in pricing their services to be more affordable and transparent. The toolkit also contains a two page summary matrix that provides a brief overview of various alternative pricing options that can be effective in the consumer market.

A more advanced version of the toolkit will include an appendix with sample forms and templates.

Defeating Motions for Summary Judgment: The Reply Brief

Below is a list of suggestions for drafting your Motion for Summary Judgement Reply Brief. It was written by James Allen, Retired Assistant County Attorney of Miami Dade County, and James Robinson of White & Case LLP who have both taught at several of our prior programs!

Remember – standards and burdens of proof.

  • The non-moving party is required to designate facts which demonstrate a genuine issue for trial and must avoid conclusory allegations unsupported by factual material.
  • The non-moving party need only prove a material factual dispute.
  • All reasonable inferences must be drawn in favor of the non-moving party.

Structure of brief.

  • Introduction – what is your theme?
  • Factual background
  • Argument
  • Sections (and section headings)
  • Conclusion

What are common defenses/themes when opposing motions for summary judgment?

  • Attack the facts.
  • Attack the law.
  • DO NOT focus an inordinate amount of space (or case citations) on the standard of proof or that reasonable inferences are drawn in your favor.

Strategies for contesting/disputing facts.

  • Choose your battles – do not contest EVERYTHING! This is a matter of credibility.
  • You must be specific in contesting/disputing facts – cite to specific language (with page numbers) and testimony. Include quotes. Emphasize important pieces of evidence.
  • If there are no disputed material facts on any issue and you agree that the issue is a matter of law, consider filing a cross-motion and a stipulated set of facts.

Addressing legal arguments made by moving party.

  • Don’t be bound to the organizational structure of the moving party. Example: If they have hidden a glaring weakness in the middle or end of their brief, bring that issue to the forefront in your opposition.
  • But don’t ignore the motion altogether – a good response brief must “respond” to the moving papers.
  • Address all arguments – failure to address can be viewed as a concession.
  • Distinguish all cases cited in the motion.   Where there are many cases, distinguish the cases in large groups.
  • Don’t submit boilerplate objections—tailor your arguments to your facts.

Using legal authority (applies also to motions).

  • The preferred priority of cases in support of our arguments:
    • First priority –cases in which trial court did what our opponent is requesting, and the appellate court reverses.
    • Second priority (OK, but not as good) – cases in which the trial court did what we request, and the appellate court affirms.
    • Third priority (not good; but we are a bit desperate) – only if none of the first two categories are available, cases in which the court cites a correct legal principle, but the court rules against our position.

A word about reply briefs.

  • Structure:
    • We demonstrate/established X.
    • They did not controvert/challenge/dispute, but only argued Y.
    • This is incorrect because …
    • Their cases do not change the result (and distinguish).
  • As a general rule, DO NOT cite the same cases from your motion – a reply brief should “reply” to the response

Introduction to Oral Argument

argument

We wanted to share with you some tips and advice from speakers at prior programs that we know you will find helpful! Check out this list of Oral Argument tips, created by Andrew Livingston, who has spoken at many of our Superior Court Boot Camps (and is speaking at our upcoming one this fall, 2018).

Let us know what you think!


Objectives

  • Learn how to prepare written materials for oral argument
  • Learn how to prepare for the spoken part of oral argument
  • Learn orienting devices to help your audience understand where you’re going.
    Learn how to deal with questions:

    • Cold benches, i.e., no questions
    • Hot benches, i.e., lots of questions
    • Answering questions
    • Moving on after a question
    • When to concede a point versus standing your ground
    • What to do when you don’t know the answer
  • Learn effective rebuttal

Preparing for the Argument

  • You should be developing your outline as you develop your knowledge of the facts and the law.
  • Your outline will probably start off very long; use the outlining process to refine your points over the course of multiple drafts.
  • Your goal should be to get your outline down to a single page, with single-sentence bullet points which you can reference during argument.
  • Consider coming to argument with a folder with:
    • your one-pager on one side; and
    • more detailed notes on the other side
  • Your folder is your security blanket; if you’re prepared, you might not need it at all.
  • The order of your argument can be just as important as the substance.
  • Think about placement, i.e., where within the argument you want to emphasize good facts and law, and where you want to [bury] bad facts and law.
  • Is there a bad fact or a bad case you want to get out in your opening so you can distinguish or neutralize?
  • Set aside dedicated time to practice your argument by yourself.
  • The goal is to get to the point where you won’t need to read from your outline.
  • Depending on time, resources, and the argument, you may wish to have a moot court session
  • If you do a moot argument, make sure the participants are:
    • familiar enough with the case to ask the right questions; and
    • can offer constructive feedback on your argument style
  • If this is your first argument—ever, or before this court—try to visit the court beforehand and watch another argument
  • Learn the layout, e.g., will you use a lectern or a table? Where is the countdown clock? Can you raise or lower the lectern? Where’s the water?
  • What are the judges’ names and where will they be seated?
  • How has the judge(s) ruled on this issue before?

The Argument

  • The first thing you need to know about speaking is that listening is at least as important.
  • The court will let you know what it’s interested in hearing, which often is not what you’re interested in saying.
  • If you’re prepared, you’ll be ready to listen to the court and adjust your argument accordingly.
  • Starting off with a concise, precise roadmap will help set up the audience’s expectations
  • Quickly state the relief and the reasons why the relief should be granted.
  • Use signposts in your argument to orient the audience
  • Let the court know when you’re moving to another point, and use that opportunity to once again map out your argument for the court.
  • Regarding plaintiff’s request for injunctive relief, the court should deny the motion because….
  • Make sure you understand questions asked, and clarify if necessary
  • TAKE YOUR TIME before
    • This is one of the hardest skills to learn in oral argument
    • Pause and think before answering
  • Resist the urge to fill the silence by saying the first (possibly incorrect) thing that pops into your head

Oral Argument Tips by Karen Kimmey

argument

Here’s another “How to” list of tips, from the do’s to the don’ts, from one of our favorite (and most loved by attendees) speakers at prior CA Superior Court Boot Camps –  we know you will find these helpful! Let us know what you think!

And don’t miss our upcoming 13th Annual Superior Court Boot Camp set for October 12th, 2018 in Los Angeles and November 8th, 2018 in San Francisco.


Oral Argument Tips, by Karen Kimmey of Farella Braun + Martel, and one of our favorite Superior Court Judges in Los Angeles.

  • Always check the tentative and be prepared to address any issues raised.
  • Check in with the court room clerk and be on time.
  • Treat the courtroom staff well.
  • Have a simple outline in front of you with key points and case cites.
  • Have brief remarks prepared but focus on answering questions.
  • Do not simply repeat arguments from your brief. Approach it in a different way.
  • Never address opposing counsel directly.
  • Do not interrupt opposing counsel or the judge.
  • Speak slowly. Don’t annoy the court reporter.
  • Avoid personal attacks or bickering. Judges hate it.
  • Know when to be quiet.
  • Come prepared with a proposed order.
  • Ask clarifying questions if unclear of what the court has ruled.

Advisors Needed for Summer Interns and Fellows

Advisors

Public Interest Law Initiative (PILI) is actively seeking Advisors for their 2018 Advising Program, which matches current Law Student Interns and Graduate Fellows with members of PILI’s Alumni Network or Board of Directors.

PILI’s Advising Program is flexible, and allows Advisors to fit the program into their schedule. Advisors are required to communicate with their Advisee, and meet at least twice during the summer. Advisors often serve as an introduction to the Illinois legal community by providing career guidance, networking inroads and valuable insights.

PILI will provide additional support and tips to assist with making the relationship beneficial for both Advisor and Advisee. Those interested in serving as an Advisor should complete the registration form before Friday, April 27th, which allows PILI to make matches based on areas of practice and alma maters.

Access-to-Justice Donations You Should Be Making

If you are making charitable donations this year, consider organizations that increase access to justice. Organizations that work to improve access to justice work with people to improve communication tools, transportation and more. From internet access, to transportation, to housing. There are many organizations out there doing great work and ensuring more people have access to the services they need.

This article from Lawyerist.com outlines many of the different options you have when making a charitable donation. You can read the full article here.

Their suggestions range from organizations helping with internet access such as Equitable Internet Initiative and Foundation for Rural Service, groups focusing on transportation like Neighbor Ride and Wheels of Success and groups who focus exclusively on keeping the doors of America’s Public Libraries open.

Even providing housing to individuals improves access to justice. If you don’t know where you are going to sleep, legal issues take a backseat. Government resources for housing are stretched thin and many private organizations have stepped in to fill the need for individuals with month-to-month or even day-to-day housing needs.

Virtual Copyrights – how will the government respond?

Virtual copyrights. What will the law do with the virtual, augmented and mixed realities coming to your smartphone soon? Jack Russo and Mike Risch don’t answer that question but they do provide a roadmap on how the intellectual property laws (and particularly federal copyright law) will adapt and adjust to provide protection for these new innovations at a recent paper entitled “Virtual Copyright” (which is a chapter in a soon to be published VR/AR legal treatise) now available here.

Further commentary is also available at Professor Michael Risch’s blog and at Computerlaw Group LLP, Jack Russo’s law firm website.

Jack Russo is the managing partner at Computerlaw Group LLC and a repeat speaker.

Mr. Russo is a frequent speaker on computer law issues and has given presentations to the American Bar Association, the Practicing Law Institute, the Computer Law Association, and the San Francisco Bay Area Intellectual Property American Inn of Court.

Mr. Russo serves as an arbitrator, mediator, and early neutral evaluator for the U.S. District Court (N.D. California), the Santa Clara County Superior Court, and the American Arbitration Association, as well as a Judge Pro Tempore of the Santa Clara County Superior Court.

Mr. Russo specializes in Internet, computer law, and intellectual property litigation. In addition, Mr. Russo is in charge of the Firm’s entrepreneurship practice.

2017 Pro Bono Week Oct 23-27

The Chicago Bar Association and Chicago Bar Foundation are holding their annual Pro Bono Week October 23rd – 27th.  Several complimentary events will be held. Law students and non-members are welcome to attend.

In 2005 the CBF, with the Chicago Bar Association, launched their annual Pro Bono Week to honor lawyers’ pro bono efforts and to educate the public and the legal community about how these lawyers are improving the lives of the less fortunate.   Pro Bono Week is just one part of the CBF’s year-round strategy to promote and support pro bono in our community.

You can find a full listing of the offerings and register here.