Maureen A. Howard, Effective Pre-trial Motions: Persuading the Judge, Feb. 2011 De Novo 7 (2011), https://digitalcommons.law.uw.edu/faculty-articles/523
Victories won in pre-trial motions can significantly affect the direction and outcome of a trial. For this reason, successful trial lawyers prepare for motions with the same thoroughness that they employ for the trial itself. Arguing a motion to a trial judge, however, is different from arguing your case to a jury; to be effective, an advocate needs to be mindful of the difference.
Judges generally resist what they perceive as emotional manipulation, theatrics, or excessive rhetoric. Many judges expect lawyers to cleanly and succinctly argue the facts and the law without employing any appeal to emotion. That being said, judges are human. They want to do the right thing. They want their rulings to produce fair results, not just legally sound results. In this regard, judges are influenced by the same universal themes that speak to jurors. The advocate’s goal is to incorporate a theme into her argument that emotionally hooks the judge without being off-putting. The most effective way to do this is to be extraordinarily well-prepared and organized. The advocate who demonstrates mastery of the facts and the law, whose presentation is tightly crafted and avoids repetition, and who is prepared to answer questions from the bench is in a better position to weave her theme throughout her presentation without irritating the judge.