You have a motion or cross motion before the court. Your attorney calls you to let you know that the court is scheduling the motion for oral argument. Anytime you have to go to court can be stressful, but what does oral argument on a motion actually mean?
We find that clients are very confused about oral argument. It is likely the only time that a judge in a divorce or family law case will actually make a decision about anything in your life. This is because 98% of all divorces settle, meaning that a judge does not make any decisions about how to resolve your case. However, in a divorce, sometimes a judge is called upon to make a decision about temporary custody, support or other issues. This is done through the filing of a motion.
Oral argument is typically heard on Fridays. In some counties, the judge will send a preliminary or tentative decision to the parties and attorneys a day or two before oral argument. This will set forth what the judge believes should be ordered based upon what he or she read in the motion papers. If you do not renew your request for oral argument after reviewing that tentative decision, you have waived oral argument and the court will enter the tentative decision as a final Order. Other times, the court does not provide a tentative decision and oral argument required if either party requested it.
Oral argument is an opportunity for the attorneys to argue your case and for the judge to ask questions. We find that the biggest misconception is that oral argument is not a hearing, meaning that there is no testimony from the clients. In addition, the court is not supposed to consider any information that was not included in the motion papers. Oral argument is really just an opportunity to explain to the court why you are entitled to the relief set forth in your motion. One thing that we stress to our clients is that an oral argument is really not the right venue for grandstanding, as the judge has already read the papers and usually already knows what he or she is going to order before either attorney opens their mouth.
An oral argument is not an opportunity to have your “day in court.” It is largely a conversation between the judge and the attorneys to clarify points in the papers you have already filed. Contact us if you have any questions on the motion process or oral argument.