A couple of weeks ago, we posted about the Supreme Court oral arguments in Brandt, where Justice Scalia interrupted counsel and asked whether he was reading off his notes. That got us and a lot of others talking about what works and what doesn't in appellate oral advocacy.
Now comes this report from the ABA Journal, "Posner tells BigLaw chief, ‘stop babbling,’ threatens to end argument in contraception mandate case." The case involves Notre Dame University's objections to the provision in the Affordable Care Act requiring health care providers to provide contraception services, but allowing religious institutions to opt-out and allow a third-party to provide those services. The 90-minute arguments were difficult for the University's lawyer, who was on the receiving end of Judge Posner's ire nearly right out of the box. As the ABA Journal reported:
"Don't interrupt," Judge Richard Posner told Jones Day partner Matthew Kairis several times during the course of a 45-minute argument. He and Kairis talked over each other repeatedly about the remedy being sought by the university in the Affordable Care Act case being heard by the 7th U.S. Circuit Court of Appeals.
And it only got worse. Judge Posner was, in our view, testy, short, and at times bordered on obnoxious. He didn't seem to treat the other two advocates who made arguments in the same fashion. Listen below to determine for yourself whether Judge Posner was being rude, and whether the advocate could have done something else but kept banging away (the audio does not begin until after the 2:00 minute mark):
At one point, Judge Posner even asked whether the use of contraceptives is "a mortal or venial sin?" Talk about ranging wide of the legal issue before the court. As one commentator wrote:
(Speaking of sins, Judge Posner stumped Kairis with the question, "Is use of contraceptives a mortal or venial sin?” After Kairis said he didn’t know, Posner said, “Well you should know. It’s a mortal sin,” and then went on to explain why Catholic theology labels it a mortal sin.)
See "How not to conduct an oral argument" for more.
We're not here to say whether the Judge or the lawyer was ultimately in the right or wrong, because by virtue of his role and robe, the Judge is always going to win that fight. Rather, we ask: when faced with such a situation, what could the advocate have done? Anyone who has argued a case has come up against a judge who is mean, rude, belligerent, just hates your argument and takes it out on you, or is simply having a bad day. A judge who demands you concede things you (or your client) just cannot concede; who poses hypotheticals well beyond your case that you simply cannot answer with a yes or no answer, as demanded by Judge Posner. What do you do in those circumstances?
You probably won't get far by aggressively pushing back (as we noted, Judge gonna win that fight), but we like the "Yes [or No], and..." approach: answer the yes or no question, then immediately explain why. It sounds to us like Judge Posner likely would have cut off even that approach, but at least it is worth a try. After that, all you can do with an aggressive judge is take your lickins, hold your ground, and hope that the other judges on the panel see the overaggressive judge for what he is, a bully. Oral argument is supposed to be a "conversation," in which the judges and the advocates explore the issue, and in which the advocate's role is to answer those questions the court has about his or her case. You are there to help clarify the situation, even when a judge seems more inclined to cross-examine you. Sometimes, however, you just can't, and the best solution may be to hold your ground in the most respectful manner possible, and try to move on to other points. Judges who have never practiced law may not understand that there are just some things that we cannot concede, and answers that circumstances dictate that we cannot give -- even if demanded by the court -- if we want to keep our clients. Yes, we have a duty of candor to the court, but no advocate should be forced to give away their case on a yes or no answer. You may be giving it up by not doing so, but that's our job sometimes.
To circle back to our starting thought, after listening to the audio and the reports of this case, the sin of reading your notes at oral argument doesn't seem all that awful, does it?
Ultimately, as Professor Kanner pointed out, it may not matter much what happens in oral arguments, because the bulk of the decisionmaking gets made on the briefs, and the court's internal discussions. We're sure the lawyer in the Notre Dame case hopes that is the case.
On that note, we attended a wonderful CLE session at the recent ABA Midyear meeting, "Preparing an Effective Appellate Brief: The Judicial Advocate Perspective," put on by the Council of Appellate Lawyers. We have posted our notes of the session here.
