To finish up on my summary of the AAAL conference in Santa Fe, there were various panels of judges answering questions from the lawyers, which can be the most useful part of these conferences. Here are some of the Q & As.
Q: What should you do if the lawyer on the other side in an oral argument makes a misrepresentation?
A: If it’s in rebuttal, the question is whether you stand up and say something, file something later, or do nothing. As with many questions, the answer is it depends on context.
One example given was when the misrepresentation was made in the opening argument, so there was an opportunity to respond. The first arguer had given a long, devastating story about what happened. In that case, the other lawyer stood up, said there is nothing in the record to support that story and then, critically, sat down. This meant that they went immediately to rebuttal, where the Court asked the logical question to the first lawyer, and he was toast.
Part of the context in responding depends on the credibility you have with that Court. A Tenth Circuit judge noted that in the first case he heard on that bench, the counsel for appellant, lawyer X said that there was nothing in the record to support the conviction and then sat. The prosecutor then argued various points. As newbie judge went to chambers, he thought that this was going to be a slam dunk for the prosecutor. The other judges in the room then said that if lawyer X says that there is nothing to sustain the conviction, then there is nothing, and they assigned case to newbie. Sure enough, the newbie judge scoured the record; there was nothing in it; and the conviction was overturned. This story, the judge stressed, shows how in appellate law, your reputation is everything.
Q: What do you do if a judge is behaving badly in oral argument, taking up time etc.?
A: Think like the military – suck it up.
Q: What do you say when a judge asks you questions about matters not in the record?
A: You say that’s not in the record. If the judge persists, you answer if you can, repeating that it’s not in the record.
Q: When do you follow up with something after oral argument? A: Aside from the supplemental authority allowed under Rule 28, the general response was don’t do it to improve your argument, and always do it to correct a mis-statement if you made one.
Q: How do you follow up a bad argument before yours?
A: One lawyer noted that when there’s a bad argument before yours, the first few minutes are difficult to grab the Court’s attention. Happily, this is not an issue with the Maine SJC, since they take a break after each argument to discuss that case and hopefully cleanse their palate.
Q: How do you refer to the counsel on the other side in argument?
A: “Counsel,” not by name. And remember, s/he is not the enemy.
Q: What do you do about the client that doesn’t want to give an extension of a deadline to the other side?
A: While you can usually explain to the client why it makes no sense to object to an extension that will be granted, and to do so would just make you look bad to the court, one lawyer addresses this issue by putting in her engagement letter that she gets to decide. Other lawyers noted that they put language in their engagement letters to the effect that they will not raise frivolous issues on appeal, and what is deemed frivolous is within their sole discretion.
In the course of this discussion, it was noted that CTA9 grants endless extensions, and that the CTA10 used to, but does no longer – you get one, then need good cause for #2. Another attorney also mentioned Rule 1.2, which provides that you must comply with client’s goals, but are not required to adhere to means to do so that the client wants. Also note Jones v. Barnes, 463 U.S. 745 (1983) for language noting a duty to dump weaker arguments, recognizing that throwing everything against the wall dilutes the stronger arguments. (That said, with criminal appeals, you may need to raise all the issues possible, since you don’t want to waive anything for the next post-judgment stage).
Next time – back to recent case law.