Sometimes around the holiday season, parents must use special skills to explain why Santa won’t be giving them that $500,000 drone or the Tesla they want. Are similar skills needed to say no to a judge in an oral argument when they say something with which you disagree? Here’s a discussion about that topic. How to Tell a Supreme Court Justice She’s Wrong, ALM Media, Dec. 4, 2018.
The article was prompted by Supreme Court argument in which Arnold & Porter’s Lisa Blatt told Justice Kagan she was “fundamentally wrong in several respects.” Justice Kagan asked “fundamentally wrong?” with the reply from Blatt, “Well, it’s factually wrong.”
My own take is that a “with due respect” preface is silly – there’s undue respect? “Respectfully” or “with all respect” seems a better way to go. But what’s wrong with “No, your honor, that’s not quite right because EXPLANATION” or “No, your honor, that assumption/conclusion [never the judge, just the conclusion] is incorrect because EXPLANATION?”
The key, it seems to me, is maintaining a respectful dialogue in the heat of an oral argument, pressed for time. The fundamental point – relevant to how you treat the statements by the other side as well, written or oral – is to maintain a civil discourse. Now, more than ever, it’s important for lawyers, officers of the court and defending the rule of law, to show civility. Don’t say the other side “misrepresents” if you can avoid it. “Misapprehends” is nicer, and gets the point made just as effectively.
As our second holiday offering, also involving Justice Kagan, Spiderman is very hot these days, with a new movie and no doubt many tchotchkes to be found under the tree involving our webbed hero. Justice Kagan is deemed one of the best writers on the bench, and if you are looking for an excellent example, an opinion with a perfect blend of serious law with a little levity, read her patent opinion in Kimble v. Marvel Entertainments, No. 13-720 (Supreme Ct., June 22, 2015).
Happy holidays to all.