"When you have the law on your side, pound the law. When you have the facts on your side, pound the facts. When you have neither the law nor the facts going for you, pound the table."
~Old Legal Aphorism
Earlier this evening, Poker Grump tweeted this:
If a justice tells you, "I'm terribly confused" and "Why don't you try to come up with something else," you're having a bad court day.
Grump was referring to the U.S. Supreme Court oral argument today in the Arizona immigration law case, Arizona v. United States . Solicitor General Donald Verrilli, Jr.—an experienced and talented appellate attorney—had as rough a day in court as can be imagined. As the preeminent SCOTUSBlog described the nadir of Verrilli's argument:
Even Justice Sotomayor advised him, bluntly, that his main argument was ”not selling very well; why don’t you try to come up with something else? … What’s left of your argument?”
As an appellate lawyer, there is really no worse feeling than when one of your strongest allies on the bench is bluntly telling you your argument sucks. In my former life in private practice, I was one of the lead motion and appellate attorneys in my firm. Honestly, there is nothing I enjoy more about my job than writing appellate briefs and arguing appeals. Many attorneys dislike or are intimidated by motion and appellate practice, but the construction and framing of legal arguments, and the freewheeling extemporaneous debate of those issues in 15-30 minutes of argument in front of a trial judge or a panel of appellate judges is right in my wheelhouse (which I'm sure will come as a major surprise to many of my readers). And just like Mr. Verrilli, I've had my share of ugly arguments, which I remember more vividly than many of my best winning arguments. Here are a couple of my personal lawyering horror stories.
* * * * *Unlike many attorneys, I didn't specialize in any one area of litigation, preferring to be a jack of all trades, willing to dive into trial work as diverse as commercial disputes, insurance and reinsurance law, personal injury cases, and product liability claims. Basically, if you could fight about it in court, I could be your hired gun (or at least your legal sniper).
A few years back, I was one of the few attorneys in the office the week between Christmas and New Year's Day. A secretary came into my office, telling me one of my partners was very sick, and had a bench trial set to start that day in a commercial foreclosure action. I got on the phone with the judge and the bank's attorney who pulled a jerk move, resisting my request for a continuance. The judge gave me one day to prepare to take over the case. Wonderful.
The next day we spent putting on evidence for the judge. Like many commercial foreclosures, the bank was trying to prove a breach of the loan agreement, while my client was trying to prove substantial compliance; still, the law and the facts in foreclosure cases rarely favor the borrower. Late in the afternoon, the bank's attorney made an eight-part motion for an immediate order of foreclosure. If the bank won on any one of the eight points, they had the right to foreclose. After the bank's attorney concluded his argument, I began to rebut each of the bank's eight points, one by one. I had pretty good evidence, and the law was in my favor on some key issues. I was on a roll, thinking I might yet salvage what had to that point looked like rather bleak prospects for my client.
Until I got to Issue Number Six. That issue was pretty much a dead loser for my client. I spun up an argument out of a few random facts and some large leaps of inference, and quickly pivoted to the stronger ground of Issue Number Seven. That's when the judge—who is smart and well-respected—looked up from his laptop for the first time in the entire argument:
"Mr. Grange, do you have any other arguments for Issue Number Six?"
Ummm, well clearly I needed some other arguments but didn't have any on hand, so I played the classic lawyer trump card: "Your honor, that is a complex issue that I would need to address with supplemental briefing." Translation: I'm in trouble, so I need a couple of days to come up with something creative. The judge smiled at me: "Yes, I suppose that issue should be briefed. Have something to me by noon tomorrow." Needless to say, I won a complete sweep of every issue except Issue Number Six ... which meant I lost the case.
* * * * *
Two years ago, I was the appellate attorney for an interesting case arising from judicial review of an administrative proceeding. Another attorney had defended and lost the case before the agency, and asked me to handle the appeal. There were two interrelated issues—whether my clients were liable and whether they owed a penalty. If we won the liability issue, we also won the penalty issue. But the penalty issue was of primary importance to my clients, and we could win that issue even if we lost the liability issue. On appeal to the district court, we contested both issues, expecting our arguments on the liability issue not to prevail on that issue, but to provide the basis for a victory on the penalty issue. To our surprise, we won both issues. Regrettably, our opponent appealed.
The appeal was assigned to the Iowa Court of Appeals. Normally, a three judge panel would consider cases, often without oral argument. The court, however, selected our case as one of two cases to receive a special oral argument in front of a five judge panel as part of a continuing legal education conference attended by a couple hundred Iowa attorneys and judges, many of whom I know and have worked with in the past. Even more stressful for me was that two recent appointees to the bench were on the panel, one being a lawyer I clerked for in law school and the other a long-time district court judge who I had appeared before on numerous occasions. I also knew the other three judges on the panel from a variety of bar activities. Talk about some added pressure!
My 20 minutes of argument flew by, as the judges were well-prepared for the case and peppered me with a barrage of questions starting less than 20 seconds into my time. Having a "hot bench" like this is actually a good thing as it shows the court is engaged with the issues; nothing is worse than trying to fill argument time with judges who have no questions or only perfunctory questions clarifying minor evidentiary or procedural issues.
I quickly realized that the judges were skeptical of our position on the liability issue. But, the judges focused the bulk of the argument on that issue which was much more complicated, and which started to loom as the iceberg that might sink our case. So, I desperately looked for an opening to shift the debate to the far more favorable penalty issue. One of the two newest judges gave me that opening, when he was pursuing a line of analysis on the liability issue. My answer clearly did not satisfy him, and his facial expression showed he disagreed with my argument. Acting on instinct, I made a play to shift the argument to firmer ground. With a big grin I said:
"Your honor, even if you're not buying what I've been selling the past 15 minutes, there is still the penalty issue to consider, and on that issue, the law is clearly in my clients' favor."
The two newest judges nearly broke out laughing, and spent the next five minutes studiously "taking notes" to avoid making eye contact with me. Even the chief judge, a pretty no-nonsense type when on the bench, cracked a smile. A cardinal rule of appellate argument is never to use humor, but I made a spur of the moment decision that I needed to shift the debate by any means possible. Since I knew the panel, and had argued in front of them often, I felt I could pull off a self-deprecating joke that signaled to the judges that, although they were concerned about the legal implications of ruling for my clients on the liability issue, they could safely rule against my clients on that issue so long as they ruled for my clients on the penalty issue. Although my ego would have preferred a clean sweep of both issues, my clients only cared about the penalty issue, and winning that issue alone while quasi-conceding the liability issue offered the court an easy way to decide the case.
* * * * *
As a coda to my trip down war-story memory lane, I have had a few trials where witnesses said some funny stuff under oath. My favorite example was from early in my career, where a major fighting issue was where an employee got the beer that got him drunk. The employee testified that he and his supervisor would drink beer together every night after they closed the restaurant for the night. The beer, however, was brought to the restaurant by either the employee or his supervisor. When the employee's attorney tried to get his client to testify that the supervisor brought the beer that the employee drank, hilarity ensued:
Attorney: Now the night of the accident, were you drinking the beer Mr. Smith [the supervisor] brought?
Employee: No, I wasn't.
Attorney: You weren't?
Employee: No, I never drank the beer Mr. Smith brought.
Attorney: Are you sure?
Employee: Oh yeah. He always drank Coors Light, and I don't drink that shit. It tastes like piss.
Amazing how honest people can be while under oath!