ORAL ARGUMENT

I had oral argument Thursday in the Eleventh Circuit Court of Appeals.
I remember when the notice of argument arrived: OA was set for Thursday, September 11, 2014. 
"Oh, great" I thought. "9/11. Is this an omen?"   Not that I am superstitious about numbers. I am not, notwithstanding that my Florida Lottery Ticket is always 8 (Willie Stargell) 12 (Terry Bradshaw) 21 (Roberto Clemente) 32 (Franco Harris) 58 (Jack Lambert), and then I throw in a different number for each ticket. Or that when I pump gas I usually try to get the pump to stop on 32 (see above). 

No, not superstitious,  I just like the Steelers and the Pirates. If I stop writing this blog and disappear, thank the Pirates and Steelers of the 1970's. 

On the day before the argument, I took a small suite at the Four Seasons on Brickell Avenue in downtown Miami to set up my final war room and get my final prep in. You can't beat their $299.00 Florida resident rate for a suite. Best deal in town. 

The bell-guys brought 6 boxes of briefs, trial transcripts, files, research, notes, and my printer up to my room. I carried up my laptop, even though I am "on the cloud" these days. Much like my aging red pickup truck, which did get strange looks among the Porsches and Escaldes when I drove up, my old Apple Mac Laptop with the white plastic case is not something I am prepared to part with anytime soon. 

My needs were simple: a fresh pot of coffee every hour or so, lunch at one, dinner at seven, and a wi-fi connection for my Sirius satellite radio so I could stay on top of the Steelers prepping for the Ravens game on the evening after my OA:  spoiler alert: I did better than the Steelers did Thursday night. 

Here's the thing about prepping for OA: do you spend your time pulling the cases in the footnotes in the other side's brief? That law school fear of standing there when three judges ask you "How does the Smith case affect your argument counsel?" while you blank on the case and frantically leaf through your notes before dropping them all on the floor - that fear never goes away even though I am 28 years out of law school and no appellate judge has ever done that to me. 

But the fear won't go away, so I spend two hours printing every case cited, putting each one in a separate folder, writing the pertinent parts of the case on the front of each folder, and creating a matrix showing where each case is cited in each brief relating to each point on appeal. There. Two hours wasted. 22 hours until the 9 AM OA the next day.

Now I read my brief again. Thankfully I don't spot any typos. Then I read the government's brief and get angry all over again. "How can they write that crap?" In my case the government surprisingly admitted misconduct by one of it's attorneys. This argument could  be all  about whether the misconduct requires a new trial or is harmless error. Or will the judges be concerned with the two technical evidentiary issues I raised independent of the misconduct? It's so hard to tell. I would pay half my fee to just get a glimpse of their bench briefs. 

Noon: 21 hours to OA. Time to look at a room service menu. Changes channels on Sirius to the Springsteen Channel. A little "Born to Run" can never hurt. 

Lunch comes and I tackle the next problem: There are a half dozen federal rules of evidence to get down. Will the judges refer to them by name? "Counsel, the government says the tapes are adoptive admissions, do you agree?" That I can handle. But the old law school fear returns. "Counsel, the government says 801(d)(2)(A) governs the admission of evidence here. Are they correct?"

Back to preparing another matrix. Two more hours later I have a new chart. I can glance at a number and get a name, along with the points on appeal they apply to, or I can glance at a name and get a number. 

The Four Seasons has a superb gym. Steam, Sauna, and I won't even allow myself to peruse the massage menu. The pool has a great bar area, with a wonderful view facing east over Biscayne Bay and Miami Beach.  I ponder the gym issue while Springsteen sings "Dancing In the Dark" during a taped concert in Sydney, Australia. This is what I feel like am doing trying to figure out what will happen tomorrow- Dancing In the Dark. I make my biggest decision of the day: No gym. No massage. No sauna. But an Iced Tea at the pool bar and the hummus and pita chips sounds like a nice break. I take my reply brief to make myself feel better. At the last minute I grab my Kindle, because I know I won't read the reply brief. It's 4pm, 17 hours to OA. 

There is so much on the line here. The client is a business man. He has a family. He was sentenced to prison. The evidence was weak, and the government committed misconduct. Like almost every appeal I write, I came away from reading the trial transcript with the feeling that if I was trial counsel he would have been acquitted. 

But that is the occupational hazard of being a criminal defense attorney. I think I can win every case.  Think Alex Baldwin  as the surgeon in Malice:  "You think I have a g-d complex? Let me tell you something, when I am in the operating room, I am g-d." 

Confidence is good. Hubris is not. And fear is what drives me. Fear of failure. Fear for my client. And to be honest, fear of making an ass of myself. So I plug on. I read more cases, read the briefs again, and start making a list of questions the judges could ask and then answering them out loud while recording my answers on my I-Phone so I can listen to how they sound. This is OA prep in 2014. 

Night comes, and now I face the final decision of the day- when to quit? Work till midnight, or get a good night's sleep and get up at 4  am for final prep?  When I was in high-school I began working on the fishing boats in Sheepshead Bay, Brooklyn. Up at 4, at the boat at five, home 13 hours later, asleep by 8. I am a morning person, so  I call it a night early, and set my alarm for 4 am, knowing I will be up five minutes before it goes off.

OA Part II: 4 am to walking out of the courthouse. 

PLR.