In a lighthearted comment, Nicole Black, the Queen of the New York Bloggers at Sui Generis and Legal Antics, wrote:

Scott, I bet you’d kiss some mean derrière at the SC

This brought me back to my early days arguing before the court.  Whether the trial or appellate court, a young lawyer looks up at the judge(s) with some degree of awe.  Your hands sweat.  Your stomach feels queasy.  You organize and reorganize your thoughts, repeating the opening line of your argument over and over.  You stand up to speak, hoping that whatever comes out of your mouth doesn’t include the small pieces of the sandwich you had for lunch.

But that was then.  As you age (gracefully), things change.  Men and women who were friends, co-counsel, adversaries, law secretaries, people with whom you had ordinary relationships, take the bench.  Judges who you got to know at the trial court level, when they may have been more indiscreet or insecure, move up the food chain to the appellate court.  Judges go from being JUDGES to people. 

When you look in their eyes, they are people you know.  After your first 50 bar association dinners, when you sat at the table and watched them drink a bit too much and start to warble bad Irish folk songs, awe is no longer the word you would use to describe them.  Similarly, they get to know you.  You aren’t some anonymous lawyer, an unfamiliar face in another pinstripe suit, making pointless sounds when your turn is called.

When I argue an appeal, I stand before a panel of judges that have a different job than me, but are no different than me.  We have shared the experience of life in the trenches.  I don’t argue at them any more.  I talk to them.  I look at them and they are the same people they were when we were all younger.  I know that some of them don’t have a clue about an area of law, but want to do the right thing.  I know that others hate particular argument, and they know that I know.

When they raise an issue that’s specious to see if they can mess with me, I have the authority to throw it back at them.  Rarely will they do this, because they know that I’m not a 30 year old lawyer inclined to take any gruff.  And never will I fail to answer any legitimate question with a direct response.  The minute I start to beat around the bush or avoid the thrust of their challenge, I’ve conceded that I’m not up to the task. 

Some lawyers are painfully obsequious before the court.  Watching them bow and scrape, with every other word “respectfully”, makes me sick.  They are judges, not gods.  They have a job to do, but they are not of a better ilk than anyone else in the courtroom.  If they do their job well, they will see your position with clarity, both its strengths and weaknesses.  It’s my job to make sure that they see that the strengths overcome the weaknesses. 

My purpose is to have a seat at the table when the judges conference my appeal.  I’ve earned it.  When they talk about what to do, they have to pass muster in my eyes the same as I have to pass muster in theirs.  They know that my opinion of the state of the law is every bit as worthy as theirs.  It doesn’t mean that I will necessarily win, but it does mean that I am to be taken seriously and given credence, just like when we sat at the same table and had a beer and talked about the law.

Is the Supreme Court different?  Well, never having had a beer with Nino Scalia, I can’t claim to be able to look him in the eye and connect with the old days.  But he’s the same judge as the one I had lunch with yesterday, as far as I’m concerned.  In fact, one of the things that I find most remarkable about Supreme Court arguments is that the justices tend to be remarkably pragmatic in their questioning.  While the lawyers take stabs at pseudo-intellectualism in an effort to impress, the justices appear strangely ordinary in their vision.  No, I don’t see my voice squeaking or my hands sweating.  I can speak to Justice Scalia as easily as any other judge.  We all put our pants on one leg at a time, though he has four law clerks to help him.

Lawyers who kiss derrières have no seat at the table.  They are just happy to get out of the room alive.  They are in awe of the court.  I respect the court, but demand that the court respect me as well.  That’s what comes of experience.