ORAL ARGUMENT PART TWO

Before I was a lawyer, I was a commercial fisherman.  Simple days of hard labour and working from 4 am  to 6 pm  and going to sleep before 9 pm and then starting the cycle all over again, conditioned me to being an early riser. In seven years of college and law school I cannot recall pulling one all-nighter. But I often would get up at 3 or 4 am to prepare for the day. Thus it was no surprise to me when my eyes opened at a few minutes after 4 am, about an hour before my alarm was set to go off. 

I ordered coffee and fruit and took a shower while listening to the Springsteen channel on Sirius. My brief and notes, and notes about my notes, were laid out on the table in the room.  I reviewed my preparation from yesterday; each brief was placed in its own folder and each case that could be discussed was in its own folder. There were typed notes about the case inside the folder, and then a shorter version of notes handwritten on the outside of the folder.  I make sure my watch and the digital time on my  I-Phone are perfectly synced, as time- you will shortly see- plays an important role in my success, or at least I'd like to think it does. 

Now I had the big decision to make- my suit and tie. I had brought with me three shirts, and two suits and three ties. Why? Simple. Here was the scenario I imagined: the valet would lose one suit and shirt and tie and I would be down to one suit and two shirts and two ties. Then, while dressing, I would spill coffee on a shirt and tie, which would leave me with exactly what I needed- one suit, one shirt and one tie. It's difficult living with the remnants of obsessive-compulsive disorder. Of course the valet didn't lose anything and I didn't spill anything, and soon I was off to court, carefully making sure that I stepped out of my room with my left foot first, and that the time was not an odd number- 6:58 is a perfect time (see my last post on OA and why I like the number 58).  

I was first up on the calendar, which started at 9 am. The clerk had instructed me to report by 8:30, so after a careful examination of traffic patterns and with due consideration to the probability of a half-a-dozen cement trucks spontaneously rolling over in front of me as I drove the approximately ten blocks from the hotel to the courthouse parking, I left at 7 am and arrived by 7:15, parked, sat in my truck, and pulled out my briefs and notes and started all over again. 

By 8 am, having accounted for the possibility of a toxic-sludge spill while walking from the garage to court, I am in the courthouse, left foot crossing the threshold first of course, and the time being an acceptable even number.  I check in and then sit on the small bench outside the courtroom. The attorney lounge soon fills up, but I avoid it, not wanting to listen to the nervous banter of lawyers recounting former victories. 

At 8:45 I walk into the courtroom and place my brief case on the table and remove my carefully labeled folders. I have neglected up to this point recounting the two dozen times during my drive and then my walk to the courthouse that I stopped, opened my briefcase, and frantically reviewed my files to assure myself that I didn't leave my notes, or my brief in the hotel. OCD means looking once is never enough. 

The government lawyers walk in and sit down. By coincidence the lead counsel's  first name is Philip and  walk over and shake his hand and  recount my favorite story where as a prosecutor I handled a case against a Father-Son team (Phillip Carlton Sr and Phillip Carlton Jr) where all the attorneys were named Phil. 

I walk back to my table and I can't help staring at the large digital clock set to count down starting at ten minutes. Ten minutes! I cannot get the time out of my head. How will I fill the time? I can talk, uninterrupted for seven minutes, eight if I slow down and heed my "pause"  instructions written into my notes. I envision three stern judges sitting like Marcel Marceau, utterly silent, while I prattle on about error and evidence and prejudice before slinking back to my seat. 

 I already know who is on the panel.  A legendary former chief judge of the court, appointed by President Nixon, will preside. To his right and my left, will be a recent female Obama appointee. To his left will be a visiting judge from the conservative sixth circuit. I know I could be in for a hard time. Two brilliant and experienced  conservative judges shooting a defense-attorney-fish-in-a-barrel; what could be a better way to start off a day of oral argument? 

What I didn't know at that moment was where the artillery shells would be fired from. 

The court comes in and we all stand and after telling us to sit, the former chief judge announces that he will make a short statement. I had considered that there might be something said about 9/11,  but all he does is introduce the visiting judge and thank him for helping out on these cases. 

I approach the podium and quickly put the thought that I haven't turned my cell phone off out of mind. OCD is a friend that never abandons you. If it rings, it rings. Thankfully, it doesn't ring. 

I start my presentation, and predictably, I stray from my written comments and just start speaking contemporaneously about the case. I knew I would do this, and I am not the least bit concerned. All my notes and preparation were not done so I could use them in court. I know that I will barely glance at them. All that work is how I absorb the material. I firmly believe that I am a better advocate speaking from memory, attempting to gain and maintain eye contact with each of the judges. 

The first question comes literally from my left and figuratively from the right- the new Obama appointee to the court. 
"Counsel, isn't there overwhelming evidence of guilt here?" 

I am prepared for the question, but not the interlocutor.  Her question is followed by a half a dozen other questions, all in the same vein: The government committed error but the evidence in the trial makes the error harmless. 

I have my prepared responses. "This court has said that this type of error invades the providence of the jury. Such error can never be harmless." I follow this response with a recitation of the facts showing that this trial was far from an easy case, and that but for these errors, the verdict would have been different. 

I raise the technical evidentiary error, and again I get a question again from my right: "Couldn't the trial counsel have mitigated the effects of the error when he questioned your client?"

"The defendant should never be put into a position of having to testify to cure errors caused by the prosecution." I respond. It was one of my I-Phone recorded answers that I had (hopefully) perfected, with the right amount of gravitas and indignation calmly delivered. 

The Judge waves off my response: "I understand that counsel. But just focusing on your client's testimony, if his lawyer had done a better job questioning him, the errors could have been mitigated, correct?"

This was not a question I was expecting, but I had the answer as soon as the Judge started talking. Now it was all about how I delivered it. I took a breath, gave the judge a small smile and responded: "I will concede this- if the defense had done a better job then I wouldn't be here this morning. But more importantly, if the government had not committed the misconduct that they now admit to, I also wouldn't have to be here this morning."

The judge smiles at me, and as I glance at the digital timer, there are twenty-one  seconds left.  My favorite number! (Roberto Clemente wore 21 his entire career playing for my beloved Pittsburgh Pirates).  This is a great omen and I decide to leave on what I consider a high-note. "If there aren't any more questions, I will sit down." The Judges all nod and I walk back to my seat. 

I didn't drop any files. My I-phone didn't ring, and the judges didn't ask me how Pennoyer v. Neff controlled their decision in this case. 

Many years ago an appellate lawyer named John Lipinski told me that as he walked out of a courthouse after an oral argument, he would stop on each step, take a breath, and let the argument go. It is good advice. As Lady Macbeth said: "What's done is done",  not that the image of a mad woman stumbling around with unseen blood on her hands is what I want to think about at this particular moment.

The great debate among appellate lawyers is how much oral argument matters? My answer, even after talking to friends over a beer who have been appointed to appellate courts, is that I have no idea. My suspicion is that it is hard to win the normal case in OA, but easy to lose. My hope is that if the judges go back to the briefs and review the carefully constructed written arguments,  the correct answer will emerge. 

Of course that hope is submerged beneath all the possible disasters that I can and do imagine- that I will not receive the opinion reversing the conviction;  that on the day before going to court for the new trial an earthquake will strike my office alone and I will lose my file; that the "cloud" containing a digital copy of my file will succumb to the latest computer virus :"Get Phil's stuff" and that simultaneously my cats will eat the three separate thumb drives that back up my cloud files that I have strategically hidden around my house. 

Oral argument may end, but OCD is a friend for life. 

PLR.