After we posted our initial thoughts on the oral arguments in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173, wherein we were of the opinion that arguing counsel did a good job overall despite Justice Scalia's initial question about the lawyer reading off his notes ("So come on folks, give the guy a break. At least until you have stood in his brogues, and gone toe-to-toe with Their Honors and lived to tell the tale."), many others weighed in.
At the same time, lawprof Josh Blackman posted his thoughts, labeling Justice Scalia's behavior "a dick move" ("Justice Scalia Chastises Lawyer For Reading From Notes"). Josh kindly linked back to our thoughts for good measure. Soon enough, other commentators picked up on the meme, with Business Insider reposting Josh's post, and Blog of Legal Times weighing in ("An Embarrasing Supreme Court Moment"). Even the ABA Journal got in on the action ("Scalia calls out lawyer for a failure to extemporize"). The comments to these pieces are worth reviewing, some forgiving, some critical. Yes, in the perfect world you aren't supposed to argue by reading notes, but after the initial stumble, counsel did get back on his game. And this is a highly technical case (we know, we filed an amicus brief supporting the petitioner).
Josh has a complete rundown of the now-viral episode ("More on Justice Scalia's "Dick Move").
But how awkward was it, truly? You can't really tell from the transcript (transcripts are lawyers' friends most of the time -- most of them thankfully do not include the weird silences, the awkward pauses, our repeated "uhhhs" and similar tics; overall, court reporters do a good job of making us look good). So here's the actual recording, which, until the Court one day allows video of arguments, is the best we're going to get:
Having now listened, I don't think it was all that awkward, just a case of nerves. I know the Rules advise "do not read" (see S. Ct. R. 28.1: "Oral argument read from a prepared text is not favored"), but it sounds like counsel started with his prepared remarks, and just kept going once the usual pile-on of Justices did not start after his first sentence.
Maybe I'm more forgiving than some of the commenters because I've been there, although not in the Supreme Court venue. My big fault is that I talk too fast in oral arguments. By the time argument commences and the "May it please the Court" business is out of the way, I usually am so ready to go that mentally I just want to get it all out there. So between that and the usual nerves that come with oral argument, I become a fast-talker. Maybe not this fast, but it sure feels that way. And it's by no means my only oral argument peccadillo. I use the crutch of notes, too, although I do not read except for when I must quote something. I end up not using the notes most of the time, but it feels good having them there, just in case I vapor lock.
And although most lawyers have their own oral argument faults, we work on them. We moot arguments. We talk to ourselves in the courthouse restroom, to remind ourselves (in my case) to slow down. We try and eliminte the "you knows" and "uhhhs." But sometimes you still fall back.
So I have tried to take a few lessons from this. First, try not to read. This is the big leagues, and there's no crying in baseball. Message received loud and clear, Justice Scalia. Second, Justice Breyer seems like a nice fellow. While I don't often agree with his rulings in the takings arena, after this argument, I believe that he's a kinder person than I thought he was before. I don't know if that's helpful to advocates or even relevant to the business of judging, but it seems like it would make him a better judge than someone who is not kind, or courteous. Finally, the peanut gallery is pretty harsh. Statistically speaking, most of us lawyers never have -- and never will -- stand at the Supreme Court lectern and argue a case. But that doesn't prevent the armchair quarterbacks from piling-on and giving a first-time advocate hell in the comment section, and adding to what already was undoubtedly a difficult moment.
Time will tell of course, and should the Supreme Court rule in the petitioner's favor (as we believe it should), counsel will have the last laugh. For in the end, it's not the advocate's performance that matters, it's whether they win the case. And in that arena, we think Mr. Lechner's argument, after he settled down, was just fine.
