Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Sunday, March 16, 2014

Perfect Finish

Every year, I listen to dozens of student moot court arguments and almost as many appellate argument rehearsals by practicing lawyers. The vast majority of them have at least this in common: they close poorly.

It appears that, somewhere along the line, we were all told that we're supposed to close our oral arguments the same way we close a pleading: 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 and pointless.

"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!"

Indeed, I've noticed that this phrase is often uttered with a kind of relief or resignation, as though the lawyer is saying, along with the woman in T.S. Eliot's "The Waste Land" whose lover has just departed, "Well now that's done: and I'm glad it's over."

Martial artists recognize a principle they call "zanshin," which is usually translated as "perfect finish" or "remaining spirit." It refers to the ending of a "kata" or form, where the martial artist does a series of choreographed movements as if fighting multiple opponents. To end the kata and simply walk 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 is hard to describe, but impossible to miss once you have seen it.

I think that great oral advocates strive for zanshin in their arguments. They do not run away from their argument when it is 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 brought them: with a point, a phrase, an image that distils their argument in a compelling way.

I once saw my friend Ted Shaw of the NAACP Legal Defense Fund argue that his client should be allowed to intervene in a case involving an important affirmative action issue. He closed his argument with this: "It shouldn't be about us, without us." How good was that closing? More than a decade later, it stays with me.


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