February 05, 2019

You Know What Really Gets My Goat...?

By Steve Emmert

You know they do it privately. Judges talk to other judges, complaining about clueless lawyers. Lawyers can’t wait to gripe to their colleagues about the grumpy judges they’re forced to endure. But these gossip sessions occur in confidence. On Friday, November 9, 2018, AJEI pulled back the curtain on all this fussin’ in a breakout session entitled, “The No-Contempt Zone: Judges and Practitioners Share What Each Wishes the Other Knew.”

As you would imagine for a session with a title like that, the conversation was often lighthearted. Moderator Matt Conigliaro shepherded the discussion after noting that the session wasn’t being recorded—except for this article, about which he didn’t know at the time—so he encouraged the panelists to speak freely. That enjoinder worked; the discussion was as frank as it was lively. Conigliaro’s panelists included two jurists—retired Eleventh Circuit Judge Stanley Birch and Georgia Court of Appeals Chief Judge Sara Doyle—and two appellate practitioners, Amy Weil and Florida Solicitor General Amit Agarwal.

The first question concerned out-of-court contact, those often-awkward moments when a lawyer rounds the corner of an aisle in a grocery store and suddenly finds herself face-to-face with a judge, sans robe. Judge Doyle noted that this isn’t the time to gripe about the court’s ruling in the Johnson case last month. Leaving aside that the jurist won’t immediately remember this ruling, it’s painful to get questions about specific cases. Although you should avoid shop talk, Judge Doyle advised that small talk is fine. Judge Birch added that if you do find yourself in that situation, it’s good form to reintroduce yourself, and he added, “We appreciate being recognized.” Weil chimed in, pointing out that when judges are approachable in situations like this, it makes attorneys more comfortable when it comes time to step up to a lectern.

Conigliaro then turned to the lawyers, asking if, in their experience, courts are receptive to requests for accommodations such as extra briefing time. Agarwal immediately said yes—not everything in this program involved griping—noting that he usually found courts in such situations to be gracious. He advised lawyers in the audience to add detailed reasons for any such request, advice that Judge Doyle echoed. But Weil dissented, citing two instances where a court either refused a request for added briefing time, or granted less than what the lawyer requested. “We’re professionals with caseloads,” she pointed out, “and you have thousands of cases. Why do you need my brief so quickly?” Judges Birch and Doyle responded that repeat requests are less likely to produce a favorable response.

The next topic was one that appellate lawyers know well: Conigliaro asked the judges for their impression of briefs where advocates add weak arguments to strong ones. Do jurists hold that against the lawyer? Judge Doyle offered a forgiving response, saying that she recognizes that some clients are more demanding, and a lawyer has client-relations issues to consider. She suggested placing such arguments late in the brief and keeping the discussion short, adding that criminal appellants get more leeway in this regard. Judge Birch pointed out that if a judge asks you about one of your weak arguments, maybe it’s not so weak after all. The lawyers then added their perspectives. Weil said that she often has to explain the issue-triage process to clients, and >90% of the time, after hearing the explanation they agree. Agarwal turned to the unspoken premise of the discussion, that a lawyer puts his or her reputation on the line when signing the brief, so including low-quality arguments can impair the lawyer’s effectiveness. But he too noted that sometimes seemingly weaker arguments win, and the lawyer shouldn’t presume to know what the appellate panel will find persuasive.

An interesting problem produced agreement among the jurists: How does a judge respond when sensing that a lawyer doesn’t really believe the argument that he or she is making? Both judges “sit quietly” and let the lawyer get through the issue. Judge Birch occasionally throws the lawyer a lifeline, interrupting to say, “Counsel, I’m really interested in one of your other issues, and I’d like to turn to that.”

Conigliaro then asked the judges how an attorney should interpret hostile questions from the bench. (Spoiler alert: Weil eventually said what experienced appellate counsel in the room were thinking: “I welcome hostile questions, because they allow me to address the judge’s concerns.”) Judge Doyle began by observing that it depends on the judge, and sometimes even on the day (i.e., some jurists are only seasonally grumpy). She added that while the judge knows the law, she won’t know the record as well as you do, and a hostile question may be based on a lack of understanding of that record. Judge Birch had a different take. In his experience, judges usually only ask truly hostile questions when the lawyer provokes them by doing things like evading a question. Judges also sometimes argue with another judge through the lawyer, so lawyers shouldn’t take this personally.

The conversation next turned to a painful subject: How do you address questions that you just can’t answer without giving too much away? Agarwal felt that trying to avoid the question draws even more attention to it. The best approach is to give a straight answer, followed by a distinguishing explanation if that’s available. He offered a particularly useful hint for when a jurist asks a lawyer for a damaging concession: The lawyer can indicate that he would need to consult with his client because he doesn’t have the authority to make a binding concession like that. Weil mused about cases where a judge demands a yes-or-no answer to a question that isn’t truly binary. She suggested that the lawyer can point out that the question really doesn’t lend itself to either a yes or a no answer. She then generated chuckles by adding, “You could say, ‘Yes and no.’” Judge Doyle agreed with Agarwal’s observation about unwanted attention, explaining that some jurists get fixated when a lawyer ducks a troublesome issue.

The panel finally took up the topic of an opponent who misrepresents the law or the record in oral argument. How do you respond? The context matters, Weil explained. If the issue is important, she’ll correct the misstatement when it’s her turn to speak, but if it’s trivial, she won’t waste time going after it. Judge Doyle suggested a more active approach: A litigant can ask for leave to file a short letter clarifying the issue. Such a letter should merely cite the record or relevant caselaw, not call the opponent a liar. Judge Birch agreed; accusing your opponent of lying is an unnecessarily inflammatory approach that might be an overreaction to an innocent misstatement. For example, saying, “The record indicates otherwise,” is a time-honored, understated way of achieving this goal. He explained further that challenging an opponent’s statement is a cue to judicial law clerks to comb the record to resolve the issue.

The panelists sprinkled the program with humorous moments. Judge Birch recounted a story of an English barrister who, after a half-hour argument, faced a grim judge who interjected, “Counsel, after 30 minutes of your argument, I find that I am no wiser than before.” The lawyer replied, “I am sorry, my lord; but you are at least better informed.” Judge Doyle related the tale of an appellee’s counsel who exasperated the court by blurting out at the lectern, “I don’t know why we’re here.” The answer, delivered in a lethally patient tone, was, “We’re here because this Court has granted your opponent’s petition for appeal,” and a parenthetical, “. . . and now we’re going to rule against you.” Agarwal told the story of his first-ever oral argument, an event his parents proudly attended. The occasion turned cringeworthy when, during the opponent’s argument, Agarwal’s mother said, all too audibly, “He’s crazy!" The audience’s response to these moments illustrates one of the best things about programs like this: There are few things in the legal profession better than getting MCLE credit for laughing.

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Steve Emmert

Steve Emmert is a CAL board member who practices exclusively appellate law with Sykes, Bourdon, Ahern & Levy in Virginia Beach. He was the founder of the Virginia Bar Association’s Appellate Practice Section and produced the first Virginia Appellate Summit in 2008, after having been dazzled by his first AJEI Summit.