Hearings in federal court are a bit different than ones in state court. First, in state court, judges generally rule on motions at hearings set by the parties. In federal court, hearings are the exception rather than the rule. Most motions in federal court are resolved on the papers. In fact, in federal court you need to request a hearing and the judge, depending on the motion and issues involved, may choose not to hold a hearing, believing that the papers are adequate. If you do get a hearing date, however, consider the following when preparing for that hearing.
Don’t rehash the papers. The judge and her law clerks have read the motions, responses and replies, have read and dissected the cases cited in them and have likely done their own research and have uncovered additional cases. Therefore, don’t start by rehashing what you said in the papers. You’ll bore the judge, and possibly insult her by implying that she has not read what you wrote.
Focus on your theme. Instead of summarizing what you said in your papers, pick out the theme you emphasized in those papers and make that the centerpiece of your argument. If you can’t reduce your argument to a simple theme that explains why you should win, then recouch your argument until you can.
Practice your argument out loud. After you have prepared an outline of your argument, and you have organized all the documents and cases you will be referencing throughout the hearing, close the door to your office, and practice your argument out loud, not just once but three times. In the process of doing this, you will hear for yourself what parts of your arguments work and which parts don’t, and you can make the necessary adjustments.
Be prepared to be interrupted. Treat the hearing like you would an appellate court hearing. The judge is having a hearing as much to allow you to present your arguments as to have her questions answered. When preparing for the hearing, think about the questions you would ask about the facts and the law if you were the judge, and have short, direct answers prepared for those questions.
Keep your composure. There is something about standing before a federal court judge, in her large courtroom, with her federal clerks and assistants sitting nearby. It can be enough to cause the words to choke in your throat. To get over the anxiety, make a point to accompany another attorney from your office to a hearing he is having in federal court, preferably a hearing in front of the same judge before whom you will be arguing. Watch how he presents himself, the arguments he makes and how he answers questions. After the hearing is over, quiz him about how he prepared and why he said what he said and why he made the arguments he made. This reconnaissance will take the edge off the anxiety.
Be prepared and be courteous. All judges expect that the attorneys who appear before them be prepared, professional and courteous. This is particularly true of federal court judges. To meet these expectations, have a hearing binder prepared with an outline of your arguments, annotated to the exhibits and cases that support those arguments, with copies of those exhibits and cases in your binder. Having everything in one place, organized and well thought out, as opposed to combing through a messy file, shows that you are prepared.
In addition to being prepared, be courteous. No matter how opposing counsel behaves, whether he interrupts you, or even insults you, never succumb to his level, however tempting. Don’t take the bait.
Arguing motions in federal court can be nerve racking. To alleviate your fears, do everything you can to prepare, take a deep breath and do the best you can.