Friday, October 14, 2011

Good appellate advice from Justice Scalia

Scalia gave some tips at a recent speech (via H/A). My fav:
"The worst mistake advocates make is not to welcome questions from the bench, to take them as interruptions," he said. Scalia, who is known to ask questions, said he can sometimes see lawyers arguing cases thinking, " 'This damn fool's wasting my time. If he didn't ask me these questions, I could be regurgitating my brief.' "


  1. Resenting questions is crazy, and suggests to me the sort of type A personality that is so severe as to block all ability to understand other points of view.

    A severe handicap in many situations, but I would think a disabling one for a lawyer arguing to the bench.

    I've heard this sort of advice from appellate judges my whole career, and so have to assume there really are lawyers who resent the "interruption."

    Almost as odd to me are the occasional appeals judges who think questions are rude. Abe Fortas was that way! I once heard Lenore Prather say that she believed a lawyer should get to make his or her argument without being interrupted.

    If so, wouldn't everyone be better off doing this with written briefs? Assuming the judges would read them?

    Oh. Well, maybe there's that function for oral argument.

  2. It depends. Intelligent questions are great and I hope I will have anticipated them all. But when you start out your argument "I'
    ve raised eleven issues in the brief but I want to talk about three in particular today" and the judge's first question is "does that mean you're waiving all the others", you know you are in front of an idiot whose stupid questions are going to ruin your argument. That happened to me a few years ago.