Week 24: Oral argument

March 21st, 2013 by Briana Cummings

Today we had oral argument on a motion to dismiss. A beautiful sunny day in a spacious, peaceful courthouse. We arrived early, the partner and I, and waited in one of the corner courtrooms for the judge. After the court reporter and clerk were settled, and the lawyers had presented their business cards so their names could be entered into the minutes, the judge appeared from chambers, took her seat at the bench, and said a curt “Good afternoon” to each of the two lawyers standing at the podiums before her.


The judge directed her first question at us. I could see my partner’s back tense as she prepared to answer, her right heel rocking back and forth like a restless five-year-old’s.

She started to drift. She was spending too much time arguing about what the statute meant. We had agreed this morning that she would instead argue that the facts fit within the defense’s interpretation of the statute — that we could amend the complaint to add more of these facts, if necessary. I struggled to think of how to communicate this in one word to her, wrote “AMEND” on a Post-It, and leaned forward to slip the note to her.

My partner was flustered. In law school the judges who taught my judicial clerkship seminar always said, “Treat oral argument like a conversation with the judge.” But no judge I have ever seen behaves in a very conversational manner. (Doesn’t a conversation entail two-way traffic of questions and answers?) And even if they did, it would be hard to overcome the dynamic set up by the surroundings themselves: the judge seated on high, sheathed in a black robe, with her supplicants standing before her. The formalities. It tends to feel more like an inquisition. This makes lawyers ramble.

After the defense counsel spoke, I started to write another Post-It , but then thought maybe the judge was ready to move on to the next issue. It’s hard to read the judge’s mind — again, I couldn’t just ask her. Maybe I should have gone ahead with the Post-It. Maybe a short rebuttal to the defense would have helped. Ah, the post-mortem of an oral argument.

On the drive back to the office, the partner and I talked about what else she could have said, or what she could have said differently. I suppose if it were truly a conversation with the judge we would have been able to send an email to follow up, to say, “You know, this is something you should probably consider.” But it’s not really a conversation — if you don’t adequately anticipate the question and respond at the hearing itself, the chance to respond is lost forever. At least for purposes of that motion.

I was once at a Q & A with Solicitor General Donald Verilli, hot off the heels of his oral argument before the Supreme Court defending the Affordable Care Act. Someone asked him why the Justices didn’t email their questions to the lawyers in advance. That way the lawyers could prepare to answer those particular questions, rather than try to guess every possible question that might be asked and try to prepare for all of them. Verilli’s answer to this question boiled down to, “Tradition.” Actually, that might be what he said verbatim.

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