Howard Bashman, the source of every significant bit of news (meaning he never includes SJ) online, provides this very funny, yet very true, article by District of Oregon Judge Michael W. Mosman, who sits by designation on the 9th Circuit Court of Appeals. While it’s a “what not to do” for appellate judges, it’s a must read for any lawyer who argues appeals as well. Judge Mosman offers 5 points for appellate judges to consider.
1. ARETHA FRANKLIN HAD A POINT
Respect is critical to the overall success of oral argument. But respect is a two way street.
Basically, this is a warning that judges to treat lawyers like idiots, extracting a promise not to bill their client for the time spent arguing, for example, or impugn their integrity because they suspect an improper purpose, because it demeans the integrity of the proceeding. Notably, this is the flip side of lawyers rolling their eyes when the judge whose entire career was spent drafting contracts asks a question about a criminal law that any rookie PD know. We can’t all be brilliant about everything, but we can behave like gentlemen in the process.
2. ISN’T YOUR CASE A LOSER?
It’s not unusual to see a judge who has decided that a particular case is a loser, and who is trying to get the lawyer to agree. This tends to be not only pointless but also aggravating to both sides. In almost every instance, the lawyer is duty bound not to stand in front of the judge and throw away the whole case.
Chances are good that someone on the panel isn’t going to be your cheerleader. But that doesn’t mean that they should use their clout to try to beat you into total submission. There is only one answer to this question: “No, your honor. Not at all.” Then spent the rest of your time arguing to the other judges, because you aren’t going to get that judge’s vote no matter what you say.
3. THE BUTCH CASSIDY PROBLEM
Cassidy’s relentless pursuers prompted him, at several points in the movie, to ask: “Who are those guys?” But there is a law of diminishing returns for this kind of relentlessness at oral argument. Judges often have a “right” answer they are seeking to a particular question. Being lawyers at heart, they pay attention to minor differences between the answer they are given and the answer they want. They want to nail it down tight.
Judges are often frustrated lawyers, who can’t stand the fact that you’re the one doing the lawyering when they want to do it too. So they cross you at oral argument to get you to say what they want you to say. The problem, of course, is that they’re the judge, and you can’t scream out, “enough already.” Mind you, other judges on the panel could do that, but collegiality usually prevents intervention.
When a judge persists beyond the second effort at getting you to give the answer they want, you need to be capable of dealing with it, since it’s your time to argue that’s being eaten up for their ego.
4. HOW YOUR QUESTION IS LIKE A PIECE OF WEDDING CAKE
Judges often think out loud in framing a question. The result is a long, multi-faceted question that makes sense to the judges because they are supplementing what they are saying with what they are thinking. But for the lawyers these questions can be almost impossible to answer.
This is one of the most frustrating experiences during argument, since you appreciate that the judge has a real concern, and is seeking your help in working a problem through in his mind. You want to help. You want to answer the question. You just can’t figure out what the heck he’s talking about, and don’t want to insult a potentially friendly judge by challenging him to ask it again, this time in English.
This is the moment when you cloak yourself in disparagement, and apologize profusely for your sorry inability to follow his incisive question, and beg the judge’s indulgence to ask it in a more straightforward way. The judge will get the message, and appreciate that you took the heat.
5. THAT VACANT LOOK MEANS SOMETHING DUMB HAS HAPPENED–BUT IT’S NOT WHAT YOU THINK
Occasionally, you may get a vacant look at the conclusion of your question, followed by a lawyer’s stumbling attempts to craft an answer. It’s possible that your arrow has flown right to the heart of the matter, and the lawyer is dumbfounded and hardly able to speak. But a dollop of humility will also create the possibility of another answer: your question doesn’t make any sense.
This is a lawyer’s opportunity to shine, if you really know your stuff. Too often, lawyers assume that the judges know the law as well as they do, and that the judges know something they don’t know. This prevents the lawyer from realizing that the judge has just asked an incredibly dumb question, causing the lawyer to feel as if he’s just been blind-sided.
But if you’ve done your homework and are fully prepared, then you will recognize the dumb question for what it is, and take advantage of the opportunity. The problem, of course, is that you need to be sure that the judge is the one who asked the dumb question, and not that you just didn’t get it.
There is much more within Judge Mosman’s post, and it’s something that every appellate lawyer should read.