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Adventures in the Law: Sometimes It’s How You Say It That Counts

Norm Tabler


  • In a Second Circuit oral argument, attorney Todd Banks faced backlash for sarcastically remarking, "I see you’ve read the briefs thoroughly," to Judge Denny Chin.
  • This disrespectful comment, made in response to a perceived misunderstanding of his arguments, led to the panel cutting off his argument, deeming he waived rebuttal, and escorting him out.
  • Despite representing Robert Doyle in a challenge against character affidavits for federal bar admission, Todd's behavior likely contributed to his unanimous appeal loss.
  • The incident prompts questions about the lawyer's strategy and the importance of reinforcing oral arguments. (Case: Doyle v. Palmer, 19-939-cv, 2d Cir. Dec. 16, 2019)
Adventures in the Law: Sometimes It’s How You Say It That Counts Salivanchuk

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In oral argument before a panel of the Second Circuit, Banks said of Judge Denny Chin, “I see you’ve read the briefs thoroughly.”

So why did Judge Chin and the rest of the panel react with such outrage, chastising Todd for disrespect, cutting off his argument, ruling that he had waived rebuttal, and ordering security to escort him from the courtroom?

The explanation lies in the context of Todd’s statement and in the tone he used, proving that how and when a statement is made can be as important as—perhaps even more important than—the content of the statement.

Judge for yourself.

Todd represented fellow New York attorney Robert Doyle in challenging the requirement that a lawyer must submit a character affidavit as a requirement for admission to the federal bar of the Eastern District of New York. Todd argued on behalf of Doyle that the requirement violates the Equal Protection and Due Process clauses, as well as the First Amendment of the United States Constitution.

When the district court ruled against his client, Todd appealed to the Second Circuit. A panel consisting of Judges Chin, Robert D. Sack, and Barrington D. Parker heard oral argument. Todd opened by inviting questions from the panel, observing that he had already explained his arguments in his briefs.

Judge Chin accepted the invitation, asking Todd why he brought the appeal when “your client controls the affidavit he submits, and if it’s not an affidavit he likes, he doesn’t need to submit it.” So, Judge Chin asked in conclusion, “What’s the injury?”

An audibly indignant Todd stated that he was “perplexed” that Judge Chin seemed to have missed the point of his arguments—a point that Todd believed he had made with crystal clarity in his briefs. “Are you serious, judge? … I don’t know what to say,” he asked with feigned amazement.

Visibly and audibly angry, Judge Chin responded, “You know what? I withdraw my question,” He ordered Todd to sit down. That’s when Todd, oozing sarcasm, said under his breath, “I see you’ve read the briefs thoroughly.”

A panel member admonished Todd for behaving in an “inappropriate, disrespectful, and discourteous” manner and then invited the government, as defendant-appellee, to make its argument.

After the government’s argument, Todd rose to make his rebuttal. An angry panel member told him, “you have waived rebuttal and are excused.”

When Todd made no move to leave, a panel member directed a security officer to “take this gentleman out of the court.” The officer complied.

You won’t be surprised to learn that Todd lost his appeal by unanimous vote.

Todd’s behavior raises two questions. The first is obvious: Why in the world would a lawyer behave with such conspicuous disrespect before a judicial panel he was trying to persuade to rule in his favor? 

The second question may be less obvious than the first: Even if a lawyer believes an argument has been adequately briefed, why pass up the chance to reinforce orally?

Only Todd knows the answers.

The case Todd was arguing is Doyle v. Palmer, 19-939-cv, (2d Cir. Dec. 16, 2019)