A few years ago Justice Milonas after leaving the Appellate Division gave a talk to a group of appellate squawkers. He told us – with no idea that there was anything strange about it – that in criminal cases the clerk who writes the bench memo usually drafts an opinion denying the defendant’s appeal before oral argument.
Depressed by having our worst fears confirmed, we sought the advice of Judge Wool, a regular contributor of wit and wisdom to the sidebar of these pages. Judge Wool served for 50 years on the Court of Nuisances and Utterances until it was swallowed up by the Unified Court System. We found him at his regular spot selling pencils in front of Manhattan Supreme Court.
AS: Judge Wool, is it true that you’ve called oral argument “a hideous combination of trial by ordeal and a rigged game show”?
Wool: Yes. But that’s no excuse for not arguing your cases. Oral argument has nothing to do with persuading the judges to grant your appeal.
AS: Then why go through the ordeal? Mumbling to oneself for days beforehand, having to listen to the presiding judge fibbing about how they’ve read all the briefs –
Wool: Think of Margaret Mead braving the jungles of New Guinea to study the customs and folklore of cultures unlike anything she’d ever known. Oral argument is necessary field study of the alien workings of the judicial mind.
AS: Is it true what they tell you in moot court, that you should never grip the podium?
Wool: In my experience, moot courts are run by officious third-years running around the school cafeteria in judges’ robes. Of course you should grip the podium, that’s what it’s there for – to keep you from collapsing.
AS: What about the advice to make eye contact with all the judges on the panel?
Wool: Rubbish. Look at the judge who’s talking at you and glance at the others now and then to encourage them to stay awake. Nothing looks sillier than somebody standing at a podium swiveling their head from side to side.
AS: Should one stop talking when the light goes on?
Wool: Certainly not. Only hacks and sycophants say, “I see my light is on and unless Your Honors have further questions I’ll rest on my brief.”
Unless you’re in the U.S. Supreme Court where they use a trap door instead of a light.
AS: Should we answer the judges’ questions even if they have nothing to do with what we’re talking about?
Wool: Yes. Never say, “I’ll get to that later.” It’s like telling a waiter you’re not ready to order. They may never come back.
And never say, “That’s a good question,” unless you want a sarcastic, “So what’s the answer?”
AS: How should we deal with hypotheticals from the bench?
Wool: Hypotheticals are always based on some fallacious unstated premise. You’ll have no trouble spotting what it is after the argument is over.
AS: Judge Wool, we can’t thank you enough for your time.
Wool: At least you could buy a pencil.
Coming soon: Judge Wool on reply briefs.