Listening the first time

Do you remember the first oral argument you ever saw? The first real trial? First mediation? First negotiation? First plea deal? First closing?

These firsts are hard to forget. They can be pure sensory overloads: the defendant comes in wearing orange, the state puts on its case and the defense tries to poke holes and humanize the defendant, the jury decides, the judge speaks, and then the bailiffs take the defendant away, or not. That’s how I felt years ago as a young journalist on the courthouse beat, watching the power of the state.

Courtesy Flickr/Jeffrey Beale
Courtesy Flickr/Jeffrey Beale

But there is another approach–preparing to listen, to see, to notice. Building a tentative framework for comprehending the event. What should an observer expect to see? To hear? What does a mentor advise an observer to pay special attention to? If an observer has never seen a trial before, how should that observer filter and evaluate the first one?

Just as one example, here is a set of “listening guidelines” for observing one’s first oral argument. Where I teach legal writing, we share these guidelines with students before they watch an oral-argument demonstration. This is not a formal assessment rubric; it’s more an intuitive list of how and what to notice. And it’s not really just a “listening” framework; it’s a learning framework for an experience that demands and rewards effective listening.

  • How did counsel begin the argument?
  • Did counsel clearly state what they wanted the court to do?
  • Did counsel make the facts of the case clear?
  • Was counsel concise in describing the facts?
  • Did counsel set out a roadmap of the argument to follow?
  • What kinds of arguments did counsel focus on (legal, factual, policy, emotional, other)?
  • How did counsel use authority to support the argument?
  • Did the argument begin with strong, favorable points?
  • How did counsel handle counter-arguments?
  • What role did the record play in the argument?
  • What kind of questions did the court ask (e.g. clarifying, hostile, or friendly questions; questions about the record or about the legal support for the argument)?
  • How effectively did counsel answer those questions? What made the answers effective or ineffective?
  • How did counsel conclude the argument?
  • Did counsel do anything distracting to you?
  • What demeanor did counsel adopt (e.g. combative, conciliatory, matter-of-fact, impassioned, etc.)?

Feedback is welcome, both on the specific guidelines and the general concept. How have you prepared yourself, if at all, before seeing a type of lawyering event for the first time? How do you advise others to prepare themselves?

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