At last, appellate law and the clam


Continuing on to the last part of the 2010 First Circuit Conference, dinner was followed by a very entertaining conversation between Justice Breyer and Judge Selya.  As I have reported on before, Justice Breyer and Justice Scalia have had a series of popular road trips, where they chat in front of audiences about various legal topics.  This was in a similar vein, with Judge Selya acting as interviewer (and a very good one, unsurprisingly, since he is in the business of asking questions.  I like having Judge Selya on my panel in an argument because he always appears to be asking what is really on his mind, and you can have a dialogue with him, which is the whole point). 

Here are a few of the highlights of their discussion:

The Footnote ban.  Justice Breyer is known for never using footnotes.  He explained why – the purpose of an opinion is not to show how scholarly you are, but to explain your reasoning in how you arrived at a conclusion.  When you are explaining something to someone orally, do you use footnotes?  It's not part of a logical progression of an argument.

Brevity.  Justice Breyer noted that decisions have become longer, and one reason why is because it is now normal for decisions to begin with long background sections.  If you look at older opinions, you will note that these types of predicates are missing.  He showed some nostalgia in getting more succinct.

Disagreement.  For all the media's intimations that the Court is deeply divided, the 5:4 decisions amount to about 25% of the decisions; more often, the Court is unanimous, at 30%.

Clams.  Finally, Judge Selya and Justice Breyer commented upon Justice Breyer's penchant for asking creative hypotheticals, which sometimes run amuck.  Justice Breyer gave a few examples, one of which asked whether there would be a difference in the result if the animal involved had been a pet clam.  (This left the arguer at a loss for words, and made me think of a very funny Monty Python skit involving a pet prawn and fish licenses, but I digress).

His point about hypotheticals does raise a serious note, which Justice Scalia articulated in a recent presentation in an ABA conference about persuasive argument.  Justice Scalia's point was, while lawyers hate hypos (that's not my case!), this type of question show what's going on in the judge's mind and why you should always answer them and not treat them as throwaways.  You care if you win or lose.  The judge cares, as I've recently discussed, in determining the proper law – how the little bit involved in your case fits holistically.  Will a ruling in your favor be harmonious – a lovely consistent addition to the pattern of that legal sweater - or is it going to be an ugly, ill-fitting knot that clashes with that overall pattern and will eventually need to be ripped out?

Hence, answering the hypothetical is sometimes the most important part of an oral argument.  Instead of thinking about how your answer can deflect the question, instead think about answering in a way that shows that how your case fits the existing pattern of the law and, even if pushed to extremes, the specific principle you are asking the court to articulate would not be aberrant.  The court is looking for consistency with the broader mosaic of the law — figuring out how this particular case fits within that larger pattern — and the hypo is one way he or she probes that issue.   

So when you are anticipating extreme hypothetical questions (granted, it's difficult to anticipate the ones involving pet clams), that should be your attitude – a response that explains how your case fits within the broader pattern.