Jan 14, 2014

Posted in Uncategorized

Justice Scalia Chastises Lawyer For Reading From Notes

What an awkward exchange in the opening of Marvin M. Brandt Revocable Trust v. United States, between Justice Scalia and Steven Lechner, who was making his first appearance before the Nine.

Lechner began with the customary, “Mr. Chief Justice and may it please the Court,” and continued on for about a page in the transcript, when he was interrupted by Justice Scalia.

MR. LECHNER: It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divests itself of title except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 Act -­

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

Oh isn’t that uncomfortable.

A moment later, Justice Breyer kindly intervened:

JUSTICE BREYER: It’s all right.

Lyle reported on the exchange:

(Lechner’s quite apparent nervousness might well have been explained because, after he had spoken only a few sentences, Justice Antonin Scalia brusquely asked: “You’re not reading this?”  Lechner didn’t answer, simply standing silent for a lengthy embarrassed moment.  Lawyers at that lectern are, it seems, supposed to extemporize.)

Pardon the French, but this is a dick move by Justice Scalia. Just because he wears a robe does not entitle him to be a jerk, and embarrass the lawyer for something like this. Scalia can be annoying, and pester lawyers on the merits, but attacking him for reading (what seemed to be a position Scalia agrees with!) is uncalled for. I understand judges at all levels are often mean and discourteous to the litigants, but generally at the Supreme Court both the bar and bench try to comport themselves at a higher level.

Robert Thomas adds at the Inverse Condemnation Blog:

You know, we’ve all been there in some venue, haven’t we? We’re all not übermensch Supreme Court litigators who can do this without a net and who have the stones to go to the lectern sans notes. Heck, we won’t even go down to muni court naked (so to speak). Especially when what’s at stake is the language in an otherwise obscure 1875 federal statute, where it’s important to get the language just so. To the Justices, oral argument is just another day at the office. And maybe that’s also true for the usual suspects downrange at the Court who appear regularly. But for those lawyers from outside the D.C. bubble, a Supreme Court case can be a once-in-a-career experience, and, we imagine, a very nerve-wracking experience, even if you do get a nice feather pen for your troubles. Especially with all of the coverage of every argument — even those not of obvious public interest that may have in years past, gone unnoticed by the larger media — where counsel’s every movement is blogged, twittered, and splashed all over the front pages of the papers for everyone to comment upon. So come on folks, give the guy a break. At least until you have stood in his brogues, and gone toe-to-toe with Their Honors and lived to tell the tale.

These types of comments ensure that only those inside the Supreme Court bar will be qualified to argue at One First Street.

Update (1/17/14): I link to the audio oral argument, and provide follow-up comments here.

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  • Robert Thomas

    Thanks for saying this Josh. Better you than me calling it a dick move by Justice Scalia, brother! But it was a dick move, for sure.

    My partner Charlie Bocken many years ago argued Kaiser Aetna v United States, 444 US 164 (1979) (one of the granddaddy reg takings cases, where the property owner actually won) before the Supremes. In those days, regular old lawyers could, if the right circumstance presented itself, take a case “all the way.” And he did. Tried the case in USDC Hawaii, got smoked by a 9th Circuit panel (“they actually laughed at my argument,” Charlie recalled), and then along with his newly-minted associate Diane Hastert, petitioned for cert, got it granted, and argued the case.

    Today, that’s more the exception than the rule. And behavior like today’s by his Lordship do not help. Everyone should be civil, even those in the black robes.

    • http://joshblackman.com/ Josh Blackman

      Thanks for the comment Rob. And I am very familiar with Kaiser Aetna. I always talk about it when I teach the bundle of sticks and the right to exclude.

  • David_in_NY

    And you know, I saw an argument 20 or 30 years ago in which the Assistant Solicitor General read pretty much his whole argument. It was amazing, and he was great. I wouldn’t try it, and the way they pepper you with questions these days it’s probably not a good idea (although to get rolling in the Court’s of Appeals I’m often reading a sentence or two, roughly). But geez, there’s nothing in the rules forbidding it!

    • David_in_NY

      But let me add that I saw Scalia be quite gracious to a nervous lawyer who, unaccountably, had called Justice Souter “Justice Scalia.” That’s a real faux pas, and Scalia broke the tension by joking that it was understandable given the similarity in their jurisprudence.

  • C

    But see FRAP 34(c) (“Counsel must not read at length from briefs, records, or authorities.”)

  • leifolson

    A mild dissent:

    Rule Number Four in delivering an appellate argument is not to read it; Rule Number Five is to have your opening memorized, because that couple of minutes might be the only chance you get to speak uninterrupted to the court. Rule Number Six is to practice answers to anticipated questions. This lawyer botched all three.

    In the transcript, the lawyer goes on for about a page before Scalia interrupts him. Unless you need to quote specific statutory or regulatory language because the particularity of the language is that important, that usually an interminable droning. I’ll assume the guy isn’t an appellate specialist; if no one in a moot court or practice session pushed him off a script, then they did him a disservice. If he didn’t seek out a moot court or practice session, or even just advice from appellate practitioners, then he royally blew it. If what he had to say was so important that he had to read it (based on my review of the transcript, it wasn’t) then his prepared response to the “Are you reading that?” question should have been, “Yes, Your Honor, because the particular language is critical here and I want to ensure that I get it perfect.”

    Denniston describes Scalia’s comment as “brusque.” I don’t know if he’s implying abruptness or harshness with that. If the latter, then Scalia shouldn’t have taken that tone. If the former, well, it’s time for everyone to pull on their big-boy britches; better to push him off the problem before it becomes a distraction to him and the justices.

  • Jeff Walden

    I was at the argument, and I was almost sort of waiting for someone
    to say something like Scalia did. Not because of Lechner reading it, I
    wasn’t paying attention to that particular aspect (and probably couldn’t
    have seen it, from my public seat on the side near the back, audience
    left). But becaunse the phrasing sounded eerily familiar — as if I’d
    read it before in his brief. And it seemed sort of strange to me that
    he’d be saying to them what he’d already written.

    Looking back
    now, I see he hadn’t. But there are some similarities of wording and
    phrasing in various places, that must have made me think it. From where
    I was I didn’t have a perfect view of what was happening up front. But
    to Scalia, who might have heard the same kinship of phrase and perhaps
    had the ability to see he was reading directly from something (which I
    really didn’t), I can understand it striking him a bit.

    I only
    have my memory to go on right now, but I thought the question was more
    matter-of-factly asked, than arrogantly asked. Along the lines of
    “clarify this for me”, and not rudely stated (at least, assuming that a
    justice who interrupts at oral argument isn’t rude, which arguably
    should be in oral arguments now). Maybe my memory’s off, and audio
    later this week will refresh it. But that’s my take on it from inside
    the courtroom, as a non-lawyer with a “hobbyist” interest in law who
    happened to be there.

    And for what it’s worth, Lechner’s half
    definitely did seem a little herky-jerky and awkward, even to someone
    who’s seen only eight arguments ever. There were several long empty
    pauses, one point where he stood searching through his papers for some
    particular reference requested of him (and if I remember right and am
    not confusing this with entirely different counsel and/or argument, then
    didn’t quite end up finding it). Definitely it had me cringing a bit,
    and when I got around to looking at other bits of coverage of it, I was
    not entirely surprised to find the awkwardness noted in them. But given
    the questions, it looked to me like his case was going to do okay even
    with nervousness and/or under-preparedness.

    (Disqus is failing to log me in right now for some reason, else I’d post via that)

    • Jeff Walden

      (ugh, sorry for the copy-paste failure copying over a bunch of line breaks and failure-to-wrap)

  • http://www.litigationandtrial.com/ Max Kennerly

    I dunno, maybe Scalia’s right, and the Supreme Court of the United States should comport itself like a middle school football practice, where the focus is on ‘building character’ by harassing the participants rather than on any sort of task at hand.

    I mean, it’s not like SCOTUS oral argument is held for a reason — one of Scalia’s colleagues hasn’t asked a single question in years, and Scalia hasn’t raised a peep about that because he, too, thinks it’s all a stupid game for his personal amusement, rather than, say, the pinnacle of Constitutional power.

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  • Dot Wiggins