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I’ve created this as a page under the Tactics & Strategies Page of this Weblog. I will creating pages under Tactics & Strategies specifically for Arguments to be raised in hearings like Motions to Dismiss and Summary Judgment specific to Assignments, Endorsed Notes, Securitized Loans, Material Issues of Fact etc.
So I’ve been spending some time in numerous Judges chambers watching and listening to some of my fellow legal eagles make their case. I have to say I’m very disappointed in many of you. I’m not sure if you all are just not prepared and you’re flying by the seat of your pants or if you simply don’t understand how to argue the point home. When we’re in the hallways before our docket number is called, you guys are talking it up and I’m in the shadows listening trying to identify who’s going to win their motion to dismiss or have summary judgment denied and who isn’t. And I swear like a scene out of My Cousin Vinny, when it’s your time to speak or when the Judge throws a curve ball at you, you all somehow obtain a studder problem.
I’m going to develop the Tactics & Strategies Page specifically for the Attorney & Pro-Se Litigator! I’m not going to start charging $4,500 to $7,500 like Neil Garfield just yet (you’re doing great work Neil…you’re like the Godfather of this movement!) but what I am going to do is dedicate this page to strengthening Attorneys ability to LITIGATE! Some of you are great at Motions & Pleadings but when it comes to stepping out the office and making the argument and impression there is much room for improvement. Why listen to me? Let me tell you why!
Qualifications: Since 1998 I’ve secured nearly half of the top 100 AMLAW firms as clients. You don’t achieve this without the gift of gab or wearing multi-color suits. You don’t put clients like Skadden Arps or White & Case on your roster by flying by the seat of your pants. You get them by going in there armed with knowledge of the case at hand, the issues and the answers to them. You make sure your presence is felt in the room as the expert of the topic whose opinion can be trusted. You leave there with everyone in the room knowing exactly who you are (and not because you handed everyone your business card).
Rule No 1. Look Sharp…Feel Sharp…Be Sharp!
When I first joined the military to become a Military Police Officer I went through what is called OSUT (One Station Unit Training). This means you go through Basic Training & Advanced Individual Training (AIT) at the same time. On every mirror in every room there were words across them that read: Look Sharp…Feel Sharp…Be Sharp! Wearing the uniform meant playing the part and taking pride in it. When everyone had to get up at 4am I was up at 3:30 starching and ironing my uniform to be the sharpest looking soldier in formation.
Foreclosure Defense is not just a strategy it’s quickly become a new practice of law in its own right. Foreclosure Defense Attorneys are much different from those prosecuting a foreclosure action. First, the attorney prosecuting has nothing to lose. If you lose, your client will lose their home, investment in their future and suffer family devastation. You stand (psychologically) a greater defeat than your opponent.
Don’t walk into court looking like a used car salesman. Play your position correctly and dress the part. Take pride in yourself which will reflect to the court and opposing counsel you take pride in your work and your client. Look Sharp…Feel Sharp…Be Sharp!!!
Rule No. 2: Emulate Confidence!
Some of you younger attorneys confuse this with being cocky. DON”T BE COCKY! No one likes a jerk. But the way you walk, the way you talk and most importantly the way you look people in the eye when you speak says much more than your words. I’m trained to detect when someone is lying through their eyes and body movements. One of the first things growing up as boys (good boys) is give a firm hand shake and look em dead in the eyes when you speak. This doesn’t change. It tells the judge if they can trust what you’re saying or not.
When you speak, speak with confidence. Make it a point to remove the following words out of your vocabulary – UM, UH & YEAH. Make it a point to eliminate pauses in your sentences. Watch the expression on your face (I promise you opposing counsel is reading you & you should be doing the same). Don’t show through facial expressions what your response is going to be to what is being said.
Rule No. 3: CONTROL THE ROOM!!! Yes I know the Judge is in control but your voice and what you are saying should control the hearing itself. It is imperative that you immediately get the Judge to value your speaking. How do you do this? The first time you open your mouth you have to immediately spark and grab the judges attention with what you are saying and make sure that opposing counsels remark do not shadow your efforts. This means whatever you’re having a hearing on your first point needs to be a grenade not a firecracker!
I once spoke to a Judge in New York when I was contemplating law school years back who said to me, “I’m going to give you some great advice. I live in Brooklyn and take the train home everyday. I have lawyers who file 20 to 80 page pleadings. You think I read them all front to back? The ones I read are the ones that grab my attention from the start. In law school they teach you like all writing classes…beginning, middle, end! Learn to write your pleadings backwards where the end is on the first page. Those are the pleadings I like reading!”
Don’t build up to the conclusion start out with it! “Plaintiff has committed a serious fraud upon this court your honor…let me tell you why!” Not “it appears that my client has always paid the mortgage on time and we have reason to believe that the payments were not being applied correctly to the right account. I have a copy of the statements that show my client paid…” blah blah blah! “Plaintiff has committed a serious fraud your honor. They were accepting payments from my client all this time knowing the loan was paid for in full on January 7, 2007 by ABC Investors and thinking that my client would never find this out, have now filed this foreclosure action in a final attempt to rob the vault! (this is just an example of attention grabbing). “I have in my possession copies of all payments made by my client before and after January 9, 2007 to present as well as a statement of sale from the original lender showing they loan was paid for in full by ABC Investors. I have a letter from ABC Investors saying they have no business relationship with Wells Fargo, the Plaintiff in this case and that at no time was Wells Fargo authorized to collect monies on their behalf.”
Rule No. 4: Learn To Read Your Opponent
I mentioned facial expressions before. They can be a critical factor in determining how to fluster your opponent. Yesterday I was in 11th Judicial Circuit with a colleague and one of the opposing counsels there was a loud obnoxious female (sorry ladies most of your are great but this one wasn’t). Before it was her bat at the plate while in chambers she was already talking, took a call on her cell phone (Judges hate both) and was all over the place. When a defense attorney went up against this woman, she began almost screaming at the guy. Rather than use this to his advantage and cause her to explode, he sat there quietly and (I assumed) hoped she calmed down on her own. The Judge was a woman who in her own expressions, was a bit aggravated and ready to tell opposing counsel to calm down but counsel did on her own and so guess who lost the hearing? Opposing counsel controled the hearing before the hearing began…Judge gave her exactly what she wanted and defense counsel walked out with his head down.
Rule No. 5: Be Prepared!
Don’t fly by the seat of your pants. I mentioned this in another post. Have your arguments ready and your cases printed. HIGHLIGHT the portions of the case you want the judge to focus on and don’t use cases that can also hurt your argument. Judges are not legal encyclopedias. They want to see the text. Try to have text from the circuit and appellate division that covers the one you are in. It is more persuasive to that judge. If you don’t and have to use cases from another circuit or appellate division be prepared to show the judge WHY they should rule the same. DON’T JUST SAY IT…SHOW IT!!!
Rule No. 6: You Have To Close!
I can’t stress this point enough. If you don;t ask for it you won’t get it! I’ve seen counsel sit there and see what the judge is going to decide. HELL NO!!! Don’t you there sit there and wait! Make sure you close strong and ASK for the relief you seek as if not getting it would be a denial of your constitutional right and a severe miscarriage of justice! Those little wait and see what happens seconds can push a judge on the fence right over to the other side. You have 5 minutes to get your point across and agreed on. You have to end it by asking for a decision in your favor.
These are just a handful of things that I feel can help you come close to winning that hearing. Feel free to email me a specific question at firstname.lastname@example.org. I’m here to help you help others in need of help!