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.