Peskind’s Structure of an Oral Argument for Lawyers

Steven Peskind discusses the importance of the primacy & recency principle before walking through the structure of a motion: cognitive bias, pathos, finish with the ask, what’s a “kill,” tell the story, and point/counterpoint.

Steven’s courtroom advocacy skills are unmatched; so much so that he is trusted by the National Institute of Trial Advocacy to teach its students, who are also lawyers, how to effectively try divorce cases. Thank you Steven for joining us from Chicago improving our firm’s oral advocacy. Our friendship means a great deal.

Chicago Attorney Steven Peskind is recognized as one of the top attorneys in the nation. Throughout his career, he has been trusted by politicians, judges, professionals, business owners, and business executives (as well as their spouses) to discreetly and professionally represent them in family law matters.

So another way of helping you to keep it interesting is to systematize the arguments. You want to have a structure now that serves a couple of purposes, right? Number one, as I just mentioned, it’s going to help you keep it interesting. It’s going to help you keep it fresh, I think, with the court. But it also is going to help you organize your thoughts in a way that will help you present it to the judge. Now, different types of arguments have different sorts of structures. And you need to think about your structure, and I’m going to talk about the structures of motions and the structures of an argument, an opening statement, or a closing argument, or even a structure of a direct examination or a cross-examination. But before I get to that, I want to talk a little bit about how we put the goodies into the argument that will get the most bang for our buck. So there is a cognitive bias in favor of the first information that we hear and the last information that we hear. That principle is called primacy and recency. Anybody hear of that?

Okay, Miles, we went to the same school. Do you know that he and I were in the same trial course in 1995? He was first in our class. Did you guys know that?

So, with primacy, we want to take the information that will be most impactful, and we want to get that upfront to the court. There are other examples of where people use primacy or want to or appreciate the value of it. Candidates crave getting the name first on the ballot. In Illinois, we have lotteries for who gets their name first on the ballot. That is really huge. People want to be first on the ballot because it’s the name that people will be most inclined to go with for media. They’re starting with their top story. When you get the teas on the five o’clock news, sometimes they start out with the weather if there’s a big storm coming. But usually, they start out with their story giving you a little bit of a teaser of something that’s going to make you sit and watch that news for a half hour.

So that’s the concept of primacy. Recency is sort of the same thing on the back end. What I hear last I’m most likely to remember. So if you think about your structure, you want to start out strong and you want to finish strong, and you want to put all the shitty stuff in the middle, okay? What might that stuff be? In the middle of an argument, you might need to make some mea culpa concessions about some conduct that your client engaged in, okay? You can never overlook that. I call that dealing with your warts.

And so, you can’t forget about those because the other side is going to take their flashlight out and they’re going to shine a light on your warts. So you need to address those, but you don’t need to do it upfront, and you don’t want to do it at the end. So you stick that in the murky middle. Another thing, sometimes you got to deal with the strengths of the other guy’s case. All cases have strengths and weaknesses. Because if you had nothing but strengths, they would settle on the other side.

And likewise, if you had nothing but weaknesses, you should be settling your case. So, there’s always good stuff and there’s bad stuff, and we need to figure out how to spin the bad stuff and how to exploit the good stuff. So the structure that I’m talking about kind of allows you to do that. Good up front, good on the back end. In the middle, we put this stuff we don’t necessarily want to highlight particularly closely. Let me talk about a structure of a motion, a regular old routine temporary motion. You’re going to court and you’re going to be making a pitch for it.

This is personal to me. Everybody needs to figure out what works for them, what they like, which sounds good, that sort of thing. But what works for me is, generally, I will start with a context after I introduce myself, although most judges know who I am by now. After introductions, the context is, “We are here today, your Honor, presenting a motion for temporary support. It was filed with the court on February 4th. Mr. Jones and his lawyer have filed a response that was filed on February 15th. I’ve got courtesy copies for the court if the court doesn’t have those already. And within our motion, we’re going to be asking you for an award of $10,000 per month.” So, we start out with our ask. Why do we do that? Primacy, number one, but also, when they’re listening to the arguments, the judge is listening to the evidence to know the context of why I’m saying whatever I’m saying. It gives the judge context.

So after we do our ask, we would then present the law. “We are here today under Section 501 of the Illinois Marriage and Distribution of Marriage Act.” It depends on your motion. Most of the time the judge knows the statute, but it’s kind of, sort of a nice formality to be clear with what sections that you are proceeding under. If you’re in something that’s a little bit kinky or unique or if you have a UCCJA issue or something the judges don’t deal with every day, it’s all the more important that you highlight the law that you’re proceeding under.

Then you move into your reasons. Maybe you want to use tricolon. Maybe you want to give the judge three reasons. But again, I wouldn’t drone. You don’t want to go on forever and you don’t have that time on a typical morning motion call. You need to get in and get out. Make your points quickly and move on. After you give your primary reasons, you would then rebut your opponent’s arguments. Don’t wait for them to do it and then reply. Hit it up front, spin it to your advantage. Now, “You’re going to be hearing Mr. Jones’ lawyer argue in a few minutes, Judge …” Blah, blah, blah, blah, blah.

And I am going to make you guys crazy with the Abraham Lincoln references, but Lincoln always spent more time deconstructing his opponent’s argument than preparing his own argument. He would drill down into that argument and he could destroy that argument by the time he actually got to the argument. Why? Because he wasn’t ignoring it because it was uncomfortable. He hit it hard, he hit straight on, and he would deal with it within his argument.

Then I would generally want to end on a strong point, okay? Maybe we were arguing up front the facts as to why my motion is appropriate. “He has a surplus of his budget of $15,000 per month. They had an extraordinary standard of living. She has no sources of income for herself. He’s got control over the money,” whatever the case may be. Then maybe you want to end strong on maybe a pathetic argument.

I don’t mean pathetic and bad. I mean pathos is an emotional plea to the court. So while she is not able to live anywhere close to the lifestyle that this couple lived for decades, he is flying around the world in his NetJets, burning up NetJets miles with his paramour. That’s just not right, judge. Okay, that might be where you want to end it. Know your judge, bait the hook. The judge may yawn, or another judge might think, “Yeah, that’s bullshit. I’m going after this guy.” Whatever the case is, you need to know your judge when you do that.

And then I would finish it up with the ask again. “So that’s why judge, we think an appropriate amount of temporary support in this instance would be $10,000, thank you.” And then be prepared to grimace as your opponent makes arguments on their side, okay?

So that is generally a structure of a motion that I use, not in every case, necessarily. But it is something that’s kind of nice because it helps you put the meat on the bones a little bit. If you think about that, then when you’re preparing your next motion, it may be a good place for you to start. And again, rules are made to be broken. So if you want to start with an emotional appeal upfront, maybe that’s the best way to go. You’re the trial lawyer, you need to decide. You know the judge, you know the case.

Now, we talked about primacy and recency. Let me apply that to how we’re going to deal with an opening statement, closing argument, or even a direct or cross-examination. Let’s start with a direct examination. How do we typically start a direct examination? “Let’s see. And after high school, you went to college at the University of Toledo.” And you go through all these banal, boring facts on a timeline. “And then you met Joe on such and such a day, and then you had kids and blah, blah, blah, blah.”

None of that really means shit. You need to get it in. You need to get it into your case at some point. But do you need to do that upfront when the judge is fresh, when the judge is interested? You are leaving money on the table when you do that. So why don’t you start with a vignette that maybe is representative of the theme of your case? If the issue is, and in your opening statement you allude to how controlling Mr. Green is, or if that’s kind of something that has some impact or relevance to your case, maybe you would start out with a line of questions showing about how she asked for money to take the kids to the zoo, and he said no or whatever. I mean, that would be a dumb example. But you guys get the point with regard to that. So you start with a strong topic.

You cover some of the more boring stuff in the murky middle, and then you end on a strong topic. Same with cross-examination, right? You want to start with a kill and end with a kill. You know what that means? So, let’s say there is an admission in the deposition, a clear admission. No ambiguity at all, and you asked the question. Your first question out of the gates is, “Sir, isn’t it true …” Blah, blah, blah, whatever it is. If they say, yes, you’ve got this great admission, bam. You start with a strong admission. They say no, you jam their deposition transcript down their throat. You impeach them right out of the blocks. The judge is saying, “What a clown.” So this was my point.

That’s what I would describe as a kill. There’s no way they can run on you. There’s no way they can play games with a question. Ask a tight question, get your answer. If they don’t give it to you, use your impeachment tools and beat them up with it. And then you would end strong with a kill as well. And then again, in the middle, you do whatever other topics that you need to cover. With the opening statement, you are going to foreshadow what the evidence in the case is going to be.

Well, don’t we want to start with what we would consider to be our most important evidence, and end with what we would consider to be our most important evidence? And talk about why your client’s conduct, while not necessarily exemplary, it’s going to come out, can be explained. And here’s how we’re going to explain it during the case. The other side, he thinks his conduct is heroic, “But, Judge, he’s actually a coward, and let me explain what the evidence is going to show.” I use that example because I have an associate who’s trying a case and the other side keeps calling himself a hero. So they’re working with that. And that’s the antithesis. Point, counterpoint. We’re showing two opposites. Keeps it interesting, helps tell the story.

Okay, I’m shifting gears now. And by the way, this is something else I want to talk to you a little bit about. At the trial institute where we teach, we talk about using headnotes, and a headnote is another word for a headline. So when we’re reading the newspaper, we have a headline. This is what this story is about. And when you’re doing an examination, if you can incorporate headnotes into your examination, it tends to make it more interesting.

And it serves a number of different purposes. It makes it more interesting. It makes it easier for the judge to follow, and it helps with client control. So a headnote during a direct examination might look like this. “Mr. Green, I want to switch gears and I want to ask you some questions about the medical care of the children that you provided. In particular, I’m going to ask you some questions about an event that occurred last July, 2023.” So we’re all focused. We know what we’re talking about, okay? If Mr. Green starts talking about something else, you can use the headnote to basically control the witness. Say, “We’re not talking about that. We’re talking about what happened in July of 2023.”

So it helps you control the witness. Again, the judge is going to be looking at Mr. Green. We all know what we’re talking about, Mr. Green. You’re trying to obey the question. On direct examination, it helps you create a conversational comfort zone for your client or whoever your friendly witness is, if it’s a friendly witness. So now we’re going to be talking a little bit about the kids’ healthcare. Oh, I know what we’re talking about. The anxiety goes down, the witness is more comfortable, the witness will be a better witness. The testimony will come off more conversational. So that’s really more beneficial as far as doing that. Okay? So using head notes wherever is really good, even in an opening statement. Say, “Judge, now I want to talk for a few minutes about the custody issues before the court.”

The evidence is going to show always you got these kind of pointers as to what you’re going to be talking about. It helps the judge, it helps you. There’s something to be thinking about.

Steven Peskind is the author of:

• The Successful Lawyer Blog
• The Family Law Trial Evidence Handbook: Rules and Procedures for Effective Advocacy published by the ABA Family Law Section
• See the rest of Steven’s books at his author page on Amazon

Check out Peskind’s other videos in this Oral Advocacy series:

1. Calming Courtroom Jitters, for Attorneys
2. Peskind’s Structure of an Oral Argument for Lawyers
3. Oral Advocacy: Authenticity, Language and Professionalism
4. Keeping the Judge Engaged During Oral Arguments
5. How Do You Practice Oral Advocacy?

For further discussion regarding Evidence & Oral Advocacy with Steven Peskind.