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"Counsel, you are not reading this, are you?"
January 17, 2014 1:04 PM   Subscribe

During oral arguments this week on the Marvin Brandt Revocable Trust v. United States case, Justice Antonin Scalia chastised attorney Steven Lechner for reading from his script. Justice Stephen Breyer broke the tension with these words: "It's all right."

John Turley: Scalia may want to change the opening of the Court to “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near, close their notes, and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.”

Simple Justice blog: There is no such entitlement at the Supreme Court. In fact, there is no such entitlement in any court. And there shouldn’t be.
posted by roomthreeseventeen (76 comments total) 3 users marked this as a favorite

 
Pardon the French, but this is a dick move by Justice Scalia.

Well if the dick cozy fits.

I hope the next time Tony gives a speech someone heckles him with "You are not reading this, are you?"
posted by edgeways at 1:11 PM on January 17 [4 favorites]


"No Antonin, you're not wrong. You're just a dick."
posted by benito.strauss at 1:11 PM on January 17 [3 favorites]


So, I competed two years on moot court on what was regarded as our school's best team, although my school was not known for its moot court team. We did okay at the regional competition but didn't go to nationals. It was good for my learning how to speak in public, I'll give it that, but it was one of the things that made me feel like the legal profession has really, really messed up priorities.

Our judges at competition were actual trial and appellate attorneys and a few retired judges. Universally, they scored people who gave totally inaccurate answers but gave them confidently and without consulting their notes better than people who actually consulted their notes to give informed answers. Few of the judges had even read the bench brief, and we were told that was great because it would prepare us for real judges who wouldn't read the briefs.

These justices have spent their entire careers among the elite of the legal profession, have "clerks" who are the best young attorneys in the United States, and somehow I suspect that some of them, and not just Scalia, don't want to have to deal with ordinary mortals. But ordinary mortals and their ordinary attorneys do sometimes end up with cases before the Supreme Court, and they shouldn't lose just because they lack polish. But they will.
posted by Sequence at 1:16 PM on January 17 [43 favorites]


uh, is this really newsworthy? Seems like a contrived controversy to me.
posted by rebent at 1:17 PM on January 17 [3 favorites]


Well, reading from the script IS counter to accepted practice (if the "It's all right" link is to be believed).

Plus, the lawyer he was chastizing represents the Mountain States Legal Foundation, which is one of those property rights uber alles setups, so, maybe good on Scalia.
posted by notyou at 1:19 PM on January 17 [1 favorite]


Wow, Simple Justice blog is a place I will never go back to.

that would just present an opportunity for an endearing response, with an upturned eyebrow and sly smile: “In fact, I am reading from my three prepared sentences before expecting to be interrupted by your challenging and deeply thoughtful question, Justice Scalia.” Everybody has a good laugh and the argument proceeds.

First time in the Supreme Court and you suggest he should mock Scalia and insult his intelligence? Thanks, law-talkin-tough-guy. That time your mom spanked you truly prepared you for this harsh, harsh world better than the "tummy rub generation" kids currently on your lawn.
posted by Hoopo at 1:20 PM on January 17 [7 favorites]


uh, is this really newsworthy? Seems like a contrived controversy to me.


Maybe if someone had brought a baby to this session?
posted by Brandon Blatcher at 1:20 PM on January 17 [28 favorites]


It's not just that Scalia is an horrible human being. He's the Baskin-Robbins of horrible human beings -- so many flavors of horribleness.

Calling him an asshole is an insult to assholes everywhere.
posted by MCMikeNamara at 1:20 PM on January 17 [17 favorites]


I understand that reading from your notes is not the way things are done, but for me, Scalia could have achieved his goal of getting him off his notes and into actual oral argument just as well with a well placed question. Commenting on the fact that he's reading seems needlessly mean.
posted by Bulgaroktonos at 1:20 PM on January 17 [3 favorites]


Just so we're clear about who the lawyer is:
Lechner is vice president and chief legal officer of the Mountain States Legal Foundation, which represented the property owner in the case. Lechner has been involved in numerous cases in lower courts, and his name has appeared on more than two dozen Supreme Court briefs.
An experienced attorney who should have known better broke with decorum and was scolded for it.
posted by notyou at 1:23 PM on January 17 [5 favorites]


Justice Scalia Mercilessly Mocks A Lawyer (And He Was Totally Right To Do It)
posted by moo at 1:23 PM on January 17 [1 favorite]


I kind of love "This wasn't just spirited questioning, it was a beat-down of the federal government." OH NOES WAS SCALIA MEAN TO THE GOVERNMENT?
posted by corb at 1:26 PM on January 17 [1 favorite]


But, see, I have a problem with calling this "decorum". Memorization is a brain thing. Some people are good at it and some are not. Some people who are ordinarily good at it have off days. Supreme Court level legal matters are things where one single misspoken word can be a very big deal. It should not be considered on the level of bad manners to occasionally look at your notes. This is oral argument, not Toastmasters, and we don't have a just system if you can lose points in how your substantive case is considered because of lack of performance skills, generally or on some particular occasion.
posted by Sequence at 1:27 PM on January 17 [15 favorites]


See moo's link, Sequence.
posted by notyou at 1:28 PM on January 17 [1 favorite]


On the plus side, perhaps this will incline the loathsome Scalia to rule against the loathsome Mountain States Legal Foundation and the Cato Institute in their attempt to aid the Marvin Brandt Recovable Trust in its post-Soviet-Russia-style looting of public lands, an attempt which he would otherwise surely support.
posted by enn at 1:28 PM on January 17 [6 favorites]


And, my first Metafilter comment is defending Scalia, pardon me while I go wash in bleach.
posted by moo at 1:28 PM on January 17 [23 favorites]


And, my first Metafilter comment is defending Scalia

It's all right.
posted by quonsar II: smock fishpants and the temple of foon at 1:32 PM on January 17 [62 favorites]


Because of the way Massachusetts handles child support cases, even routine ones, I found myself acting as a pro se litigant last year. Many, many documents I read and many lawyers I spoke with mentioned that I should have as little written as possible outside of technical notes (which exhibits refer to which things, and so on). Have everything written at the table, but basically nothing with me when I am standing or speaking, and certainly not while questioning or arguing.

I did not listen to this advice. I explained that I would be hopeless without these notes, and if I am deducted style points I hope to make up for that with "actually arguing the case on merit." I would be doomed, otherwise. One of the four lawyers I spoke with said "you're pro se, you can maaaaybe get away with it."

I did. I won. And should I find myself in court again, I will absolutely bring notes again. (But I will do a better job preparing to work without notes while actually on the witness stand; the judge required that I didn't use them while actually testifying.)
posted by andreaazure at 1:40 PM on January 17 [1 favorite]


Wow, Simple Justice blog is a place I will never go back to.

For serious. I feel dumber for having read that post.
posted by asterix at 1:41 PM on January 17 [1 favorite]


I'm not sure what in that is supposed to change my mind, notyou? What they're critiquing is the ability to play the oral argument game, the ability to do the things that rack up the points in moot court. That is, yes, how it is conventionally done. And it's still not justice, because the quality of one's legal argument is not based on one's ability to walk in and talk extemporaneously. The business about walking in with nothing more than a legal pad with your name on it is exactly what's wrong with this. Smooth performance skills have nothing to do with the merits of your argument, but we have a system in which people are building entire careers on their ability to be smooth. Oral argument should not be about deciding who's the best at oral argument, it should be about deciding whether the US government is allowed to build a hiking trail on some privately owned land in Wyoming, or whatever.

enn, I am all about the socialism, but I don't think there's much of an argument that this is "looting public lands" when the whole point here is that the Brandt trust does in fact own the underlying land, and nobody's questioning that fact, that I can tell. The government had a right of way on that land at one point. Whether they still do, well, I guess we'll find out.
posted by Sequence at 1:45 PM on January 17 [8 favorites]


moo: "And, my first Metafilter comment is defending Scalia, pardon me while I go wash in bleach."

You don't need to feel bad about that, because in our legal system, even murderers are entitled to a defense.

But you should feel bad about linking to ATL without a label, since that place is like the Tucker Max of the legal world, and as I actually went to law school with Tucker Max, I feel well-qualified to make this judgment.

Now I have to go wash my poor phone in bleach so it doesn't get syphilis from ATL.
posted by Eyebrows McGee at 1:46 PM on January 17 [11 favorites]


Clarence Thomas gets beaten up for asking no questions during oral arguments, and his response clarified to me a lot about how the court works: before oral arguments, everything has already been argued over and cited and rebuted endlessly on paper, presented in its most thorough, legalistic form, and if written submissions don't contain the entirety of your argument and then some, you're not doing your job. Furthermore, depending on the court, much legal wrangling occurs behind the scenes--witness Roberts' famous reversal on Obamacare.

Oral arguments are largely a bit of theatre and a chance for some human contact and perhaps drama in an otherwise dry-as-dust process. To stand up and read from your papers is exactly the opposite to what you're there for. Yes, you're supposed to fence with Scalia and prepare to cross swords with Stevens, and maybe loft an easy one that Sotomayor can spike into Robert's face. For Scalia to merely observe that an attorney is doing the opposite of what he's supposed to in that room, doesn't strike me as a crucifixion.
posted by fatbird at 1:47 PM on January 17 [9 favorites]


Being asked if you're reading something is the prompt for vapours and a prompt trip to the fainting couch? I never knew what fragile flowers lawyers were. I can't imagine what kind of Scanners-style head explosions would occur if somebody pointed out a grammar mistake, or horrors, a mispronounced word or two.
posted by Shepherd at 1:49 PM on January 17


Sequence, you can read it as "looting public rights-of-way," if you prefer. Regardless, the purpose of this lawsuit is to assign to private ownership assets which have been understood to belong to the people for a hundred-some years.
posted by enn at 1:50 PM on January 17


we have a systemsociety in which people are building entire careers on their ability to be smooth.
posted by Going To Maine at 1:53 PM on January 17 [4 favorites]


A skilled appellate lawyer does not read his or her argument to the court. Ever. That's what written briefs are for. On oral argument, counsel has his or her one chance to address the judges of the court directly, to convince the court that the client's legal position is worthy of being sustained by the court. This process is, indeed, a performance where counsel must show the court absolute confidence and not fear.

When I argue in appellate court, I take nothing with me to the lectern except an expectation that I will be answering questions from the court immediately. Having no papers as a security blanket is a sign to the court that I am confident and ready to enter into the kind of battle of wits between court and counsel that Nino Scalia so obviously relishes (and Clarence Thomas does not).

The sin of Mr. Mountain States was showing weakness. Justice Scalia—like the top predator he is—pounced on that weakness. It may have been cruel treatment to one of his epigones, but the lawyer showed disrespect to the institution by not being ready to enter into the battle of wits that is fundamental to a good oral argument. A Supreme Court oral argument is not beanbag, and Justice Scalia made that point with devastating clarity.

I too hate to defend a self-important windbag like Nino, but I can't fault him on his comment to counsel.
posted by rdone at 1:58 PM on January 17 [4 favorites]


enn, I am all about the socialism, but I don't think there's much of an argument that this is "looting public lands" when the whole point here is that the Brandt trust does in fact own the underlying land, and nobody's questioning that fact, that I can tell. The government had a right of way on that land at one point. Whether they still do, well, I guess we'll find out.

More accurately, the government granted the right of way to the railroad. When the Trust bought the land around that, they assumed that the when the railroad was no longer using the land, it would revert to the Trust. It should be noted that according to the Washington Examiner, the Trust wants to do nothing more with the land than keep socialist automobile hating communist bicyclists off of it.
posted by Pogo_Fuzzybutt at 2:00 PM on January 17


Ah, so the supreme court is basically a sporting arena in which lawyers compete to see who has the biggest 'skills'. And here I thought it was something about finding the truth or determining constitutionality or somesuch.
posted by Pyry at 2:02 PM on January 17 [11 favorites]


And it's still not justice, because the quality of one's legal argument is not based on one's ability to walk in and talk extemporaneously.

So we should judge the quality of the legal argument on one's ability to write the argument well?

Look at it this way. Maybe the justices want to read the argument as it is written, and they want to hear it spoken, in a venue in which they may interact with (or interrogate) its advocate, as a means of evaluating the argument, rather than its presentation, whether written or spoken. Both forms come burdened with their own conventions, one of which is the expectation that oral argument be made mostly without notes.
posted by notyou at 2:02 PM on January 17


prose litigant

Oh, do Cormac McCarthy next!
posted by turbid dahlia at 2:03 PM on January 17


Being asked if you're reading something is the prompt for vapours and a prompt trip to the fainting couch?

Uh, no? The worst people are saying is that Scalia was kind of a dick.
posted by Hoopo at 2:04 PM on January 17


Ah, so the supreme court is basically an arena in which lawyers compete to see who has the biggest 'skills'. And here I thought it was something about finding the truth or determining constitutionality or somesuch.

In the future we'll let the robots handle it. In the meanwhile, we have to rely on human skill and effort, yes.
posted by notyou at 2:04 PM on January 17


JUSTICE SCALIA: Counsel, you are not reading this, are you?

Lechner should have said: "Yes, and why don't you fold it five ways and put it where the moon don't shine."
posted by Bokmakierie at 2:05 PM on January 17 [1 favorite]


Ah, so the supreme court is basically a sporting arena in which lawyers compete to see who has the biggest 'skills'. And here I thought it was something about finding the truth or determining constitutionality or somesuch.

This is exactly not it. The volume of legal argumentation on paper for something that goes to the Supreme Court is immense and dry and legalistic and everything you could hope for out of due process before the highest judges in the land. The point is that oral argument, while most dramatic, is almost always irrelevant to the outcome of the case.

Lawyers, are you aware of any significant changes to outcomes due to oral arguments? AFAIK there's never been a case where brilliant rhetoric at the lectern made a big difference.
posted by fatbird at 2:07 PM on January 17 [1 favorite]


Is this one of those things that we're only hearing about because the internet has an infinity of column inches to fill?
posted by Atom Eyes at 2:09 PM on January 17 [2 favorites]


Ah, so the supreme court is basically a sporting arena [...]

Oral argument is, or at least there's some merit to the claim that it is. There's a lot more to the Court and its process than oral argument, though. We just don't see a lot of the other parts, because they're dry and boring. The "sporting arena" aspect of oral argument is exactly why it gets a lot of press coverage and exists in the popular imagination, in a way that, say, the guy writing briefs at 3AM in his underwear doesn't.

You are not alone if you feel that perhaps the theatrics of oral argument are deleterious to the functioning of the Court as a judicial body; that's basically Thomas' stance.
posted by Kadin2048 at 2:10 PM on January 17 [2 favorites]


I forget who I heard say it, but there are basically two purposes to Oral Arguments, and otherwise it's a vestigial ritual. It keeps a human face on the whole process, which is a non-trivial consideration. It also allows for last minute, outsider, or overlooked angles to be brought up by any party, especially the Justices who don't normally engage in debate directly with the lawyers. These aren't irrelevant, but if you were going to eliminate part of the process that's unnecessary, the first thing to go would be oral arguments.
posted by fatbird at 2:10 PM on January 17


In the meanwhile, we have to rely on human skill and effort, yes.

But in a 'battle of wits' the person with the most wits wins, no? Yet, if we are interested in the truth (or the 'best' outcome under some criteria), there is no reason to expect that the wittiest person should also always be the person advocating for the best position.
posted by Pyry at 2:13 PM on January 17 [1 favorite]


AFAIK there's never been a case where brilliant rhetoric at the lectern made a big difference.

Quem ad finem sese effrenata iactabit audacia!
posted by gimonca at 2:13 PM on January 17 [2 favorites]


It keeps a human face on the whole process, which is a non-trivial consideration

I can personally vouch for the documentation involved in disputes over rights-of-way being terribly fucking boring, so points to you
posted by Hoopo at 2:15 PM on January 17 [2 favorites]


But in a 'battle of wits' the person with the most wits wins, no? Yet, if we are interested in the truth (or the 'best' outcome under some criteria), there is no reason to expect that the wittiest person should also always be the person advocating for the best position.

This is needlessly reductive. Effectiveness of argument (written or oral) matters, but the justices still consider the law and the facts. If I present my case ten times better than you present yours, but my case is "my client should be able to punch people he doesn't like in the face with impunity," and yours is "no he shouldn't," you're still going to win, even if I'm the better lawyer.
posted by Partial Law at 2:19 PM on January 17


OH NOES WAS SCALIA MEAN TO THE GOVERNMENT?

corb, the person who said it was a "beat-down" of the government was the president of the organization opposed to the government in this case. He was attempting (with little success, given this post and all the linked articles) to redirect the conversation to "look how bad the government did and how weak their position is compared to ours," not to solicit pity for the government.
posted by Partial Law at 2:24 PM on January 17


the justices still consider the law and the facts

This is hard to square with the actual history of the Court.

(I mean, sometimes they do. But the counterexamples are too numerous to count.)
posted by asterix at 2:25 PM on January 17 [2 favorites]


The purpose of an advocate's oral argument, Rehnquist explained, is to "work his way into the judge's consciousness and make the judge think about the things that the advocate wishes him to think about." Establishing eye contact is a good way to begin that process, Rehnquist said, and "this simply can't be done while you are reading your presentation."
Makes sense to me.
posted by twirlip at 2:27 PM on January 17


Reading your Supreme Court oral argument is pretty bad. But not as bad as starting your oral argument in the most important women's right case in modern history by cracking an inappropriate sexist joke. Hear that after the joke? That's the sound of the Texas Attorney General's office losing Roe v. Wade.
posted by The World Famous at 2:29 PM on January 17 [8 favorites]


Effectiveness of argument (written or oral) matters, but the justices still consider the law and the facts.

Oh, well it's nice that the justices at least consider minor details like laws and facts as tiebreakers when they can't pick which lawyer won the brain battle. But snark aside (as I'm sure your choice to list argument effectiveness before law and fact was unintentional), the question of whether argument effectiveness does matter is different from whether it should matter. Ideally, argument effectiveness and lawyer skill should not matter at all, and in particular, docking one side points for having written notes (or for other irrelevant stylistic issues) doesn't serve truth or justice in any way.
posted by Pyry at 2:31 PM on January 17 [2 favorites]


None of this removes the fact that, many times over, Justice Scalia has proven himself to be a repugnant human being.
posted by Benny Andajetz at 2:39 PM on January 17 [3 favorites]


Ideally, argument effectiveness and lawyer skill should not matter at all,

So how would you police writing ability to ensure that one side's written submissions don't have an undue advantage?
posted by fatbird at 2:40 PM on January 17


Give him a hot bench, J. Scalia, and he won't need to read from the script.
posted by Dr. Zira at 2:41 PM on January 17 [1 favorite]


Sequence: "Our judges at competition were actual trial and appellate attorneys and a few retired judges. Universally, they scored people who gave totally inaccurate answers but gave them confidently and without consulting their notes better than people who actually consulted their notes to give informed answers. Few of the judges had even read the bench brief, and we were told that was great because it would prepare us for real judges who wouldn't read the briefs."

Isn't it the judges' fault for being persuaded by shitty-but-impassioned arguments? I don't understand why this is necessarily assumed to be the lawyer's responsibility.

The highest court in the nation should not be awarding style points.

Mock trial has always irritated me for this reason (especially since it seems to be breeding our current generation of judges, lawyers, and politicians). The whole premise of "debate something regardless of the merits" is absurd. While I recognize that it takes a certain level of skill to craft this sort of bullshit, I don't understand why we don't have similar levels of appreciation for those who can identify and cut through the same crap.
posted by schmod at 2:44 PM on January 17 [4 favorites]


Seems like an easy first question counsel didn't answer according to transcript and needed another justice to intervene to continue. Dick move, but let's cut to the chase and move off from the script and get to questions. Listen to 1:30 if you like. Kind of easy to second guess a justice from pointing out, hey we've come to expect counsel better prepared without a script, just as briefs and other arguments have certain expectations for consideration.
posted by brent at 2:44 PM on January 17


Reading your Supreme Court oral argument is pretty bad. But not as bad as starting your oral argument in the most important women's right case in modern history by cracking an inappropriate sexist joke. Hear that after the joke? That's the sound of the Texas Attorney General's office losing Roe v. Wade.

Christ, what an asshole. Thanks for that gem. If I were Roe's counsel I would have had to be physically restrained.
posted by foxy_hedgehog at 2:45 PM on January 17


If all court cases were written and only written, you could get any number of lawyers to edit your arguments. The result would be literally written by committee, and would read so.
posted by LogicalDash at 2:51 PM on January 17


If all court cases were written and only written, you could get any number of lawyers to edit your arguments. The result would be literally written by committee, and would read so.

Um, they're already written that way. There's no rule that says the person doing oral argument has to write the whole brief alone. Teams of lawyers write the briefs, pretty much all the time.
posted by The World Famous at 2:55 PM on January 17 [2 favorites]


It's not just that Scalia is an horrible human being. He's the Baskin-Robbins of horrible human beings -- so many flavors of horribleness.

Calling him an asshole is an insult to assholes everywhere.


And now I want ice cream. Dammit. How does that even work?
posted by davejay at 3:03 PM on January 17 [2 favorites]


Lawyers, are you aware of any significant changes to outcomes due to oral arguments? AFAIK there's never been a case where brilliant rhetoric at the lectern made a big difference.

The Supreme Court case of U.S. v. Adams might count. That case involved a patent on a battery. "Adams's attorney arose before the Supreme Court, took a drink from his glass of water, and then dropped a tiny Adams battery into the glass. The inventive battery immediately lit a tiny light that continued to burn throughout the argument. Some accounts suggest that the attorney knew he had won the case when the Justices kept their eyes on the tiny burning light throughout the remainder of the argument."

Dartmouth College v. Woodward is also frequently cited as an example. "Webster's speech in support of Dartmouth (which he described as "a small college," adding, "and yet there are those who love it") was so moving that it apparently helped convince Chief Justice John Marshall, also reportedly bringing tears to Webster's eyes."
posted by jedicus at 3:04 PM on January 17 [2 favorites]


Lawyers, are you aware of any significant changes to outcomes due to oral arguments? AFAIK there's never been a case where brilliant rhetoric at the lectern made a big difference.

At the lower-court levels, categorically, yes. Not often, but yes. Sometimes oral argument is a lot more important there because the judges are less likely to have read the briefs. At the state court I clerked at, my judge had a career clerk whose entire bench memo on a case was a sticky note on the briefs which said, "Affirm, I think?" (and my judge had not read the briefs before oral argument, either).

Also -- and I saw this first-hand in my clerkship -- a lot of briefs at the lower levels are really, really bad. Competent oral argument is a way there to salvage a horrible brief, or for a judge (or advocate) to cut through a dense or poorly written brief to the deciding or important issue. It's made a difference.

But it's also totally unfair to compare those experiences to arguments at the U.S. Supreme Court, at which there are such a small number of cases that the judges are well-briefed and well-prepared. At that level, most cases (and arguments) go through so much preparation and vetting.

So for the guy to just expect to stand up in front of The Nine and read, the way he did, it not only shows that he's not a member of the club that is the "regular" Supreme Court Bar, it also shows that he didn't have the guidance or prep from people who would have told him not to do that. Or he had the hubris to ignore that advice.

I mean, it's right there in the rules. "Oral argument read from a prepared text is not favored" and, in the practice guide, "Under no circumstances should you read your argument from a prepared script." So that reflects poorly on the advocate in even more ways.
posted by QuantumMeruit at 3:04 PM on January 17 [3 favorites]


Without this happening I would have never known that the Court hands out souvenirs.
posted by Ogre Lawless at 3:41 PM on January 17


I'm laughing.. The first thing that comes up for a Google search on "scaliaisadick" is this lovely haiku...
posted by anguspodgorny at 5:19 PM on January 17 [2 favorites]


Is there a reason to suppose that Scalia wasn't actually prompting his favored side to observe the court etiquette so as not to lose the attention of other justices? I mean, if he saw that opening statement as a painfully dull and uninteresting start (or perhaps realized that some of his colleagues might think so), he turned that around pretty quickly and bought some sympathy for the guy he liked. I wouldn't say that kind of trivial micro-interaction is deeply strategic, but it's not necessarily a dick move.

The theory that he was just being a jerk for the hell of it fits too, of course.
posted by Monsieur Caution at 5:31 PM on January 17 [1 favorite]


"Counselor, be prepared. Buy my book."
posted by IndigoJones at 5:50 PM on January 17


Counsel for the petitioner need not recite the facts of the case before beginning argument. The facts are set out in the briefs, which have been read by the Justices.

You should speak in a clear, distinct manner, and try to avoid a monotone delivery. Speak into the microphone so that your voice will be audible to the Justices and to ensure a clear recording. Avoid having notes or books touch the microphones, since this interferes with the recording proc­ess. Under no circumstances should you read your argument from a prepared script.

- GUIDE FOR COUNSEL IN CASES TO BE ARGUED BEFORE THE SUPREME COURT OF THE UNITED STATES, 2013, p. 9 (emphasis mine) [PDF]
It makes me vomit a little, but Scalia seems in the right here.
posted by Panjandrum at 7:07 PM on January 17 [1 favorite]


"Counselor, be prepared. Buy my book."

It's mentioned in the Guide for Counsel!

"The following are excellent sources of information for arguing counsel: Making Your Case, the Art of Persuading Judges, by Justice Antonin Scalia and Bryan Garner..." (p.7)
posted by Panjandrum at 7:09 PM on January 17


You can listen to the audio here.
posted by wmoskowi at 8:01 PM on January 17


The Utah Gay Marriage Decision Used Justice Scalia's Own Language Against Him
posted by homunculus at 8:02 PM on January 17


I'm betting that if it were Ruth Bader Ginsburg that made this comment, most of you guys criticizing the judge wouldn't care. You only care because it's Scalia.

Reading your argument is bush league and is the mark of a shitty trial lawyer at any level, but especially at a level where the judges' time is so valuable.

If you have stage fright and you can't handle delivering your argument verbally (while making use of notes, as anyone would), you don't have any business being there. This isn't a 1L mock trial or some children's speech and debate contest.

The rules of the court very specifically prohibit going in there and wasting the justices' valuable time by reading off of a script. If you're so reliant on a script, just include all that info on your brief and save them time that could go to another valuable case.

Look, I dislike Scalia as much as most of you do, and I think he's a pompous, fundamentalist fool. But here, it sounds like he was on point. Some of you are just reacting to a name here.

"Scalia? WHARRRRRRGARBL!!"
posted by Old Man McKay at 9:02 PM on January 17 [2 favorites]


"Counsel, you are not reading this, are you?"

20 pages, same as in town, your honor.
posted by Chitownfats at 9:42 PM on January 17


No need to choose sides here -- both sides were at fault.

(1) You should absolutely not read from a page at oral argument -- that's what written briefs are for. What's the point of stating something orally if it can simply be put on paper?

(2) Still, if a lawyer starts out an oral argument by doing that, the judge can simply interrupt them with a question, and not call them out on it. Lawyers make mistakes all the time. Most of the time, judges don't need to openly mock them for it; there are far more subtle and polite ways to guide an attorney into the appropriate conduct.

Adding:

(3) 95% of the time, oral argument doesn't matter. But every once in awhile, we--umm, I mean, the judges on the panel--actually need to ask the attorney a question to get the answer to a meaningful question that wasn't addressed in the briefs. And every once in a blue moon, a really good oral argument can actually change a judge's mind. So you, if you are an appellate attorney, should never, ever, assume oral argument is meaningless.
posted by mikeand1 at 10:02 PM on January 17 [1 favorite]


(2) Still, if a lawyer starts out an oral argument by doing that, the judge can simply interrupt them with a question, and not call them out on it. Lawyers make mistakes all the time. Most of the time, judges don't need to openly mock them for it; there are far more subtle and polite ways to guide an attorney into the appropriate conduct.

This aspect leapt out at me most. Had Scalia just taken the opportunity to ask him a question, that would have "solved" the problem most effectively. In answering the question, the attorney would no longer be reading from his paper. If it turned out that he could respond adroitly to an extemporaneous question, then everybody's basically happy at this point. On the other hand, if a question makes him "um" and "ah", because it's knocking him off-balance, then we have a perfect example of why you should never be the person reading from a sheet of paper at oral argument.

Either way, this story seems like a mountain being made out of a molehill. This is not the first sharp remark Scalia has made, and it won't be the last. It is common knowledge in this universe that you should not read from a paper at oral argument, and yet it still happens.

The world spins on.
posted by Sticherbeast at 10:29 PM on January 17


If you have stage fright and you can't handle delivering your argument verbally (while making use of notes, as anyone would), you don't have any business being there.

I'm not knowledgeable about how the US Supreme Court works and I understand you're not supposed to read a script but presumably not everyone has access to kick-ass all-star hot-shit trial lawyers. If you are representing your client and the case is at the Supreme Court, then you probably have business there no matter your oratory skills. It's apparently nowhere near as important as the written part anyway. If I'm ever in shit that goes all the way to the Supreme Court, I'm giving more weight to a lawyer's ability to put together a good case than his/her public speaking skills.
posted by Hoopo at 11:01 PM on January 17 [1 favorite]


You only care because it's Scalia.

Well shit, if a Supreme Court justice doesn't feel the need to be impartial, why the heck should we bother?
posted by benito.strauss at 11:04 PM on January 17 [3 favorites]


Hoopo, if you're in a legal situation that makes its way to SCOTUS, it doesn't matter if your lawyer has experience there.

It does matter if your representation can't be fucking bothered to read the fucking manual SCOTUS provides to all litigants.
posted by feckless fecal fear mongering at 1:54 AM on January 18


This is not the first time a conservative has said that someone forgot the Polish.
posted by srboisvert at 6:42 AM on January 18


> It does matter if your representation can't be fucking bothered to read the fucking manual SCOTUS provides to all litigants.

First, please watch your language, no call for that!

Second, it's a matter of certainty, considering the one or two dozen Supreme cases that the lawyer in question had been involved with, that he knew the rule. Most likely he simply wanted to be correct in this technical and complex matter.

I'm curious - why, exactly, is it a good thing to have a rule preventing people from reading notes, as so many of you seem to think?

Certainly reading from notes, being generally less interesting, will give someone an intrinsic disadvantage - but surely many cases have a great deal of complex, intricate material, a lot of which is coming in sufficiently late that it's hard to memorize? Isn't it better for the argument to be completely correct than to have some arbitrary rule about how it's introduced?
posted by lupus_yonderboy at 9:30 AM on January 18


I'm betting that if it were Ruth Bader Ginsburg that made this comment, most of you guys criticizing the judge wouldn't care. You only care because it's Scalia.

But the same drily-described act can mean or indicate different things depending on who did it.

Thomas doesn't have Scalia's reputation for being a weapons-grade asshole in all settings, in part because he's nearly always a passive non-participant in oral argument. If he'd done this, it would be a sign that he was unholy pissed-off at the attorney, because he speaks so rarely.

Scalia does have his reputation, though, based on long and bitter experience of him almost never failing to be a complete asshole if an opportunity to asshole presents itself. So if we start with a very strong prior belief that Scalia is being a dick, and incorporate new information that's consistent with him being a dick, we're likely to conclude that he's being a dick. That's just Bayesian updating, that is.
posted by ROU_Xenophobe at 10:02 AM on January 18 [3 favorites]


I'm curious - why, exactly, is it a good thing to have a rule preventing people from reading notes, as so many of you seem to think?

QuantumMeruit did a good job with this earlier, I think.

Speaking for me, I'd say that it isn't a good thing or a bad thing, it's just the way the rules say Things Are Done, and a lawyer shouldn't make trouble by not doing things according to the rules unless they have an actual goal for doing so. I took a course from a lawyer once who did a fair amount of trial work, and one of his points is that impressions matter. The law might be objective rules, but they are interpreted by human beings who must at some point make a subjective judgement. (e.g. the way that a fair use test can be rather hand-wavey, and you're bringing in people to get rid of that element.) Good presentation matters for this, as does following the rules.
posted by Going To Maine at 4:03 PM on January 18


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