Over the years, I’ve listened to countless student moot court arguments, argument rehearsals by practicing lawyers, and actual appellate arguments. The vast majority of them have something in common: They close poorly.
It’s as though we were all instructed to close our oral arguments the same way we close our pleadings: by telling the court the relief we want. This makes sense in the context of a complaint or motion. But, in the context of an oral argument, it is boring, pointless, and a wasted opportunity.
“For all the reasons I’ve just stated, we ask that this court reverse the decision of the trial court.” Good grief. As if we could imagine an appellate judge crying out: “Wait a minute! That’s what you want?! Who knew?!” or “Wow! Now that I hear what you want I’m persuaded to give it to you!”
Furthermore, I’ve noticed that law students and attorneys often utter these phrases with relief or resignation as they gather up their papers and stare at their shoes. The closing takes on a “Thanks, I’m out of here” quality. The tone sometimes reminds me of the woman in T.S. Eliot’s poem The Waste Land who says after her lover has departed: “Well now that’s done: and I’m glad it’s over.”
Martial artists recognize a principle they call “zanshin.” Scholars translate the word differently, but often it’s taken to mean “perfect finish” or “remaining spirit.” It sometimes refers to the ending of a “kata,” where the martial artist does a series of choreographed movements as if fighting multiple opponents.
To end the kata by simply stopping, bowing, and walking away is to fail. Zanshin means that in the last movement the martial artist does not relax their attention or spirit. Everything that came before is affirmed in the continuing energy of the finish. It’s hard to describe, but impossible to miss once you’ve seen it.
I think that great oral advocates strive for zanshin in their arguments. They don’t run away from their argument when it’s over. Rather, they maintain the same energy and eye contact at the end that they sustained throughout.
And they try to leave the judges with something that will keep them in the place where the advocate has carried them. They look for a point, a phrase, an image that distils their argument in a compelling way. They want the power of their argument to keep ringing in the judges’ ears.
I once saw my friend Ted Shaw of the NAACP Legal Defense Fund argue that his clients should be allowed to intervene in a case involving an important affirmative action issue that would affect them. He closed his argument with this: “It shouldn’t be about us, without us.”
How good was that closing? Roughly twenty years later, it stays with me.
A perfect finish.
This is an updated version of a post that first appeared on Len Niehoff’s previous “Random Verdicts” blog.
