No Podium For Weenies

Steven Lechner had a rough start to his oral argument in the fascinating case of Marvin M. Brandt Revocable Trust v. United States before the Supreme Court.  As it turned out, he did pretty well after that, but Justice Nino Scalia threw him off his game at the outset. From Tony Mauro at the Blog of Legal Times:

By all accounts, it was an excruciating moment at the Supreme Court on Tuesday.

A nervous first-time advocate began his argument by reading from a prepared statement, until the never-shy Justice Antonin Scalia interrupted and asked: “Counsel, you are not reading this, are you?” The lawyer, Steven Lechner, froze and did not answer, staying silent until Justice Stephen Breyer broke the tension with these words: “It’s all right.”

It’s not that one can’t sympathize with Lechner. While one panel of judges looks the same as any other, especially now that none of them have velvet strips on the sleeves of their robes, knowing that you’re standing before The Nine, one third of a government, is heady stuff.  This is the big leagues, where a ruling affects not just one client, but a nation.  As far as a lawyer’s responsibility goes, it doesn’t get bigger.

Upon hearing this, kid lawprof Josh Blackman responded strongly:

Pardon the French, but this is a dick move by Justice Scalia. Just because he wears a robe does not entitle him to be a jerk, and embarrass the lawyer for something like this. Scalia can be annoying, and pester lawyers on the merits, but attacking him for reading (what seemed to be a position Scalia agrees with!) is uncalled for. I understand judges at all levels are often mean and discourteous to the litigants, but generally at the Supreme Court both the bar and bench try to comport themselves at a higher level.

Even in Latin, motum dick. this doesn’t sound better.  But this reaction, calling Scalia a “jerk” and his comments “uncalled for” is the by-product of the expectation of the tummy-rub generation, where never will anyone say or do anything that will harsh their self-esteem or, god forbid, cause them to feel badly about themselves.

There is no such entitlement at the Supreme Court.  In fact, there is no such entitlement in any court. And there shouldn’t be.

Initially, it’s worth noting that Scalia’s comment wasn’t all that harsh.  “You aren’t reading this, are you,” isn’t like “your fly is open” or “you’re a blithering idiot, counselor.” For those of us who have done our time in the appellate trenches, that would just present an opportunity for an endearing response, with an upturned eyebrow and sly smile: “In fact, I am reading from my three prepared sentences before expecting to be interrupted by your challenging and deeply thoughtful question, Justice Scalia.”  Everybody has a good laugh and the argument proceeds.

As painful as this is to write, Joe Patrice at Above the Law gets it right:

A prominent litigator once told me before an oral argument that I should have a pad bearing only my name on it. His logic was that the first thing you have to do is introduce yourself and once you get that right you should be able to handle the argument just fine. I’m not sure I’d give the same advice to everyone, but if you’re going before a judge — and especially if you’re going before the Supreme Court — you can use your notes to keep citations straight or to guarantee you’re properly quoting from the opposing brief or prior opinions, but take the time to get the skeleton of your oral argument committed to memory. If you haven’t lived with this case enough to have its nooks and crannies committed to memory, you probably aren’t ready anyway.

Whether it’s the local muni court or the Supremes, the lawyer is still a lawyer.  That doesn’t mean he’s expected to be perfect, but he is required to be up to the task before him. If he’s not, he has no business being there. Contrary to the Slackoisie perspective, there is no entitlement for lawyers to do a lousy job of it and get a warm and fuzzy tummy rub for doing their best.

And it bears repeating that Lechner didn’t do badly, and was up to the job, save for the moment he froze.  In the scheme of things, that can be forgiven since he then proceeded to fulfill his function as advocate before one third of government, as was his duty.

The point is that lawyers have grown used to the coddling they receive in law school, and expect that judges will continue to treat them with the respect and courtesy they believe they are due, as a matter of entitlement. This has long been a deep concern of mine.

This isn’t to say that judges shouldn’t be respectful and courteous, and appropriate judicial temperament is one of the few qualifications for wearing the robe. Rather, the reaction to something perceived by a lawyer as failing to meet the lawyer’s expectations makes the judge’s conduct wrong. Or as Josh calls it, a “dick move.”

Indeed, it’s certainly possible that a judge makes a “dick move,” and anyone who has spent any time in the trenches has had the pleasure of getting smacked for no good reason, and sometimes for a pretty bad reason.  It happens. But then, court is a tough place, and lawyers are supposed to be tough enough to take a punch and keep on fighting. That’s one of the few qualifications for being a law-talking guy.

In the grand scheme of things a judge can say to an advocate, Scalia’s “you are not reading this, are you?” doesn’t merit so much as a bump on the “dick move” scale.  Any lawyer with adequate chops to stand up in the well of the Supreme Court ought to be able to take it without blinking and turn it to his own advantage. That’s what lawyers do.

What lawyers do not do is whine about it, feel hurt about it, let it throw them off their game or, as in this case, freeze.  And what those teaching law students who aspire to some day argue before the big bench do not do is foster the sense of entitlement that they are due the respect and courtesy that makes them feel good about themselves. No one gives you a red balloon after oral argument at the Supreme Court, and there is no prize just for showing up.

21 thoughts on “No Podium For Weenies

  1. AP

    I’d be curious to know if Steven Lechner has been whining about what Scalia said or is it just the non-practicing professors who are outraged on his behalf? For all we know Lechner may be embarrassed by all this attention and may have had no problems with Scalia being Scalia.

    1. SHG Post author

      There isn’t any information that I’m aware of from Lechner, and I would suspect that he wishes his frozen moment wasn’t frozen forever on the interwebs. Given that he did a fine job otherwise, by all accounts, the momentary lapse has become a cause for the law twinkies, which is the only reason it warrants further discussion.

  2. Max Kennerly

    I didn’t realize the purpose of Supreme Court oral argument was to amuse the Justices.

    The issue isn’t how Lechner felt about it; nobody cares, it’s his job, and I don’t think he’s even complained. The issue is why Scalia did it. It did nothing to advance the oral argument — it instead induced a delay, one that his colleague had to intervene to fix.

    So why did Scalia do it? The only reasonable answer is: solely to harass Lechner. That’s a dick move, and it’s an offense to the decorum of the court, just as bad as if Lechner had retorted “Does it matter? Clarence over there isn’t even listening.”

    1. SHG Post author

      No, Max. He did it because he’s an Associate Justice of the United States Supreme Court who gets to sit on the big bench and ask what he, in his discretion, thinks he should from lawyers arguing before him, and you’re an entitled baby lawyer who thinks he gets to decide whether a question by a justice is a “dick move” or not. When you grow up to become a big boy lawyer, you will grasp the irrelevance of your impression of why Scalia said it.

      And, lest I be insufficiently constructive to suit your baby lawyer sensibilities, solely to harass Lechner is not “the only reasonable answer.” He may have done so to save Lechner from himself, to move Lechner forward in his argument or to save the time of nine Supreme Court Justices from listening to an advocate read the same content that was already set forth in his brief, which is expressly “not favored” by the Court’s rules.

      1. Alex Stalker

        I don’t have enough information to take a position on whether Scalia’s question was intended solely to flummox Mr. Lechner, but I disagree with your assertion that judges should not be courteous. Respect needs to be earned, but I see no reason why judges should not approach attorneys with courtesy by default. We attorneys are required to be courteous to judges upon potential pain of jail, is there a good reason it shouldn’t be a two way street?

        Just because Scalia can say something, doesn’t mean he should. Our country has a history of calling out “dick moves” made by those in power against the less powerful. One could says it stretches back to July 4, 1776 when a group of people decided to list King George’s “dick moves” and declare they weren’t having any more of it.

        1. SHG Post author

          Of course judges should be courteous. That isn’t in question. What is in question is the childish entitlement to challenge a judge because he failed to meet the Gen Y expectation of respect and courtesy. What Nino did was nothing. I’ve seen 100 times worse, and still it’s no excuse for a lawyer to freeze. And to compare it to King George’s “dick moves” is just ridiculous.

          1. AP

            Likening King George’s “repeated injuries and usurpations” with Scalia’s “dick move” has to be some sort of bizarro offshoot of Godwin’s law.

          2. Alex Stalker

            Put without hyperbole, my point with King George is that being powerful shouldn’t be a free pass for “dick moves.” Which is what it looked like you were arguing in favor of in your previous comment.

            1. SHG Post author

              But “dick moves” aren’t a product of Slackoisie entitlement. When Scalia’s redcoats shoot into a crowd of paid ruffians whose goal was to incite them, killing Crispus Attucks, we can discuss whether it’s a “dick move.” That a Supreme Court Justice’s poke isn’t sufficiently courteous to raise a lawyer’s self-esteem to the level of Slackoisie fulfillment is not subject to Gen Y lawyer approval.

      2. Max Kennerly

        Your flailing about just digs the hole deeper. If Scalia had a question, he would have asked it. If Scalia wanted to move forward, he would have said “move along” or the like; of course, that too would have been a breach of protocol, as the Chief Justice is the one who keeps the time.

        Instead, Scalia saw a nervous advocate, and so, for sport, took a pot shot at them — and was immediately and rightly put in his place by another Justice. SCOTUS’s own “Guide for Counsel” specifically encourages first-time advocates to understand that the Court is aware of their inexperience, and to encourage them to nonetheless go with their own instincts: “Ordinarily, the Justices will know whether you are making your first argument before the Court. Be assured that some first-time arguments have been far superior to presentations from counsel who have argued several times.” Scalia, however, wanted to have some fun, and in the course of that has again shown why he is held in such low regard.

        You’re the only person here obsessing over Lechner’s feelings or his age. Nobody cares but you. This would be just the same if Lecher was 70 years old, with decades of trial and appellate experience but none before the Supreme Court. What matters here is a Justice who can’t seem to comport himself with the dignity of the Court.

        1. SHG Post author

          No one is obsessing (you like to use that word a lot. Projection?) over Lechner’s feelings or age. Lechner isn’t whining and ultimately did fine. He’s not the one complaining about Scalia’s “dick move,” Max.

          As for other things Scalia could have done that would have satisfied your baby lawyer sensibilities, here’s a newsflash, Max: Scalia doesn’t have to please Max Kennerly’s special feelings. Even worse, nobody has to please Max Kennerly’s feelings. As a lawyer, you really need to come to the realization that the purpose of the legal system isn’t to make Max feel good about himself.

          I hope you some day have an epiphany, but you haven’t shown much inclination to mature.

  3. Dan Hull

    Two things:

    1. Very few of our 900 or so Article III judges are rude. To some (not me) Scalia’s move may have been a dick one–even though SCOTUS rules and culture frown on reading arguments. But the point to me is that courtroom advocates are expected to be “ready for anything”. This, of course, is impossible. I’ve seen (and read) SCOTUS arguments where great lawyers were blindsided by something. And they regrouped and went on (i.e., “No, Justice Scalia, I really did not consider the possible applicability of dicta in Talbot v. Seeman, the court’s noteworthy 1801 decision on war-time salvage rights–but I am suggesting that….”). Regroup and go on is exactly what Lechner–evidently a fine lawyer who did a creditable job in the argument–did.

    2. I ran across Josh Blackman briefly during his W.D. Pa. incarnation as a great judge’s law clerk. But now I am beginning seriously to wonder whether there is just one Josh Blackman. Is this kid cloned? He’s jumped all over every recent SCOTUS issue of any size like a big dog. Am impressed. The new Dershowitz?

    1. SHG Post author

      As much as Josh may have a Gen Y sensibility when it comes to tummy rubs and modesty, he is certainly not a slacker.

  4. Pingback: More on Justice Scalia’s “Dick Move” | Josh Blackman's Blog

  5. Rick Horowitz

    My response would have been “that’s a bit of a dick move, isn’t it ‘justice’?” (with a lower-case “j”)

    My intonation would make my sarcasm and contempt — hold me in contempt on this one; I’m cool with that — clear.

    “I am, of course, reading. Is it your dim vision that causes you to ask?”

    This isn’t about “tummy rubs.” It’s about human decency. Toni could have said, “I prefer you not read your argument,” or even pointed out that their lack-of-style guide advised against reading. Instead, he chose, as he so often does, to show why that court deserves little-to-no respect.

    As a Certified Law Student, I argued before the Fifth Appellate District Court for the State of California. Within ten seconds — we know that because I memorized the first few sentences, and only the first few, of my opening, so I would get past my expected initial fear — “justice” Vartebedian, as it was later said, “reamed me a new one” because I referred to a so-called “gang expert” as a “gang cop,” which the “justice” felt was disrespectful. (It should be noted that even someone from the AG’s office later said something like, “He was just being a dick.” No kidding.)

    The next few times I did it — I tried to stop, but I had trained myself not to refer to them as “experts” — he showed displeasure.

    But when the AG made the same “mistake” in the first few minutes of his argument, Vartebedian looked at him, then over at me, and said, “I guess you two are showing that I’m being over-sensitive.”

    No, “justice.” You were being a dick. A pro-cop, pro-prosecution, quite clearly biased, dick.

    Sometimes, it’s not about “tummy rubs.”

    Sometimes it’s about someone’s failure to be an impartial judge, or justice, or even a human being, instead of a dick.

    1. SHG Post author

      So this was an opportunity for you to tell your Vartebedian story? Since we’re already off-topic, consider this: the day after oral arg, your options were to smack back at the judge for having demonstrated a pro-cop bias (which obviously wasn’t the problem with Nino’s comment) and feel good about how you didn’t take any crap from him, or win your case, free your client and change the law for the better for every Californian. Which one would you pick?

      1. Rick Horowitz

        Sorry. My comment was wrong on more than one level.

        First, I should have stopped after “little-to-no respect.” I did not intend to go off-topic. (If, it’s alright, I will end my going off-topic with this explanation, which I hope will be more on-point.)

        Second, you’re right that I would consider my words more carefully while arguing the case. I would have fantasized about something like what I said here, but I would have protected my client.

        And, third, I should have used “Niño” instead of “Toni” in my fantasy. I didn’t mean to be sexist; I meant to point out that Scalia was not acting appropriately. He was acting more like a child than a judge.

        And my response above was less like a thoughtful attorney than it should have been.

        The only thing I have to say about that is that when I read what was being said about this event by others — who don’t have to worry about offending Scalia, but nevertheless put-down the lawyer rather than the intemperate judge — I had a sympathetic flashback.

        Perhaps the reason Lechner “froze” is that he was trying to decide whether he should highlight Scalia’s gauche behavior, or whether ignoring it would be an equally bad idea, or how otherwise to move on more gracefully.

        It’s really tiresome that we keep giving intemperate, often clearly biased, non-law-following judges a pass because “it’s their house.” I don’t think it’s supposed to be “their” house.

        And I don’t think it’s “whining” for us to point those things out.

        But, again, I do apologize for inserting my own example of judicial misbehavior.

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