by Dr. Ken Broda-Bahm
As counsel begins her oral argument to the judge, everything is going according to plan. She systematically previews her main points and begins developing the first of several layered arguments. Then… the judge interrupts with a question. Then another question. Then a counter-argument. Before she knows it, counsel is off-track and her carefully prepared outline is out the window. This isn’t an unusual circumstance at all when dealing with a “hot bench,” a judge who is unusually active in controlling the flow of oral argument through questions and arguments from the bench.
As common as it is, the “hot bench” can be unnerving for even experienced presenters. After all, one premise of giving a speech is that the speaker controls the time, the structure, and the content. But not so when a judge wants to control all three. In that situation, attorneys often respond in one of two unproductive ways. At one extreme, some attorneys will simply surrender, e.g., “Why prepare a presentation at all? The judge will decide what we talk about… I’ll know the facts and the law well enough, but I’m not going to worry about having a plan of what to say first, or second, or last…because I can’t control that.” At the other extreme, some attorneys will engage the judge in a struggle for control, e.g., “Yes, your honor. If you will allow me to continue, I was planning on addressing that point in a minute…As I was saying…”
So what is a “break apart structure?” Just like it sounds, it is a plan that is designed to be broken apart: A series of independent points that can be introduced and developed in any order. While you begin with a default sequence, nothing is lost in the event that the judge’s participation causes you to revise your order. Think of it as a speech on index cards (remember when speakers used index cards?). In this case, you might start off with your “cards” in a specific order, but you are always ready to switch the order up depending on where your judge’s attention happens to fall. For this approach to work, four things need to happen:
1. Focus on independent points. Attorneys are used to developing a progression of arguments – main point two builds on and extends point one, or points three, four, and five are reasons for point six, etc. That pyramidal structure may work well in the written persuasion of briefs, but can easily crumble in the face of a “hot bench:” the active judge is simply not permitting you to develop a complex structure. Instead of being frustrated by that, capitalize on the chance to emphasize separate and distinct points: e.g., seven independent reasons why the court’s decision should be reversed, and they can be delivered one through seven, or in any other order.
2. Make sure your notes cooperate. The notion of independent points is simple enough, but do your notes reflect that? If they are in the form of multiple pages that are structured three or more levels deep, then probably not. Instead, follow the rule of one page, one point. Instead of thinking in terms of numbers, structure, and sub-structure, think flatter: bullets. Just as with the main points, if your bullets are independent as well, then so much the better. Because you’ll never know how many you can get in before the judge interjects, each bullet should stand on its own.
3. Think on your feet. The execution of this approach occurs during oral argument, not before it. Instead of plowing through a planned outline of arguments, you need to make moment-to-moment reactions to what the judge is saying. This means that you have to anticipate the judge’s concerns as fully as possible before the argument; and then listen carefully to the judge’s comments and questions, always with an eye to the independent point that you plan to bridge to in your answer.
4. Practice what you predict. It always surprises me that attorneys who predict that the judge will interject at every opportunity, will nonetheless practice as if they will have uninterrupted floor time. If it isn’t realistic, then it isn’t practice. When you have a “hot bench,” practice for that by asking a colleague to pepper your practice runs with realistic questions and interposed arguments. What matters isn’t that your colleague get all the interruptions just right, but that you become used to adapting your break apart structure on the fly.
Ultimately, you should welcome participation from the bench. As Sacramento County Superior Court Judge Loren McMaster wrote, “Questioning from the Court generally gives you a good idea what the judge considers important. It may disrupt what you had planned to say, but you should immediately turn to the question and answer it. Do not say, I will get to it later. That is not helpful, since the judge is ‘there’ now.” The potential persuasive advantage in the “hot bench” cannot be overstated. What better way is there to know what your target audience is thinking, than to hear their objections and concerns straight from them? What could be more conducive to persuasion than the ability to know exactly what obstacles are occurring as they occur? As immigration lawyer, Raymond Fasano noted about Supreme Court Justice Sotomayor, “When a judge asks a lot of questions, that means she’s read the record, she knows the issues and she has concerns that she wants resolved. And that’s the judge’s job.”