Note: This essay originally appeared in AFFIRMANCE Magazine, the official journal of the New York Association of Appellate Adjudicators (NYAAA). Following publication, the editor was immediately fired, disbarred and disrobed.
Brethren and Cisterns: I’m deeply honored to be asked to contribute to this venerable publication and it’s about time. For those of you who haven’t had the pleasure of my acquaintance, you are directed to visit Judge Wool Says without further ado.
The first rule of appellate adjudication is read the goddam briefs. Just because Judge Saxe says they’re “turgid and prolix” is no excuse. It’s not like you’re being paid to have fun.
If you don’t think you’re getting paid enough, take bribes. A judge who takes bribes might still make the right decision, which is more than can be said for judges who never read briefs. You know who you are.
If the briefs are really too much, at least read the reply brief. If there’s no reply brief, read the day’s horoscope. Use the bench memo for your parakeet cage liner.
Contrary to deeply-held beliefs, the courthouse will not fall down if, instead of trying to ask zingers at oral argument when you haven’t had a chance to look at the parakeet cage liner, you simply say, “Counselor, tell us about the case.” Who do you think you’re fooling when you wing it with questions like, “Wasn’t this a terrible crime?”
If the lawyer keeps saying the same thing over and over, it’s because s/he thinks you haven’t understood what they’re trying to say. Snarling, “Counselor, we have your point!” conveys exactly the opposite, makes them crazy, and worst of all, makes them repeat it again. Remember, they’re in a state of altered consciousness when they’re up at the podium . You can shave hours off oral argument by calmly reiterating their point in non-sarcastic tones. Then you can snarl.
Nothing in the Constitution prohibits an appellate panel from taking a seventh-inning stretch during oral argument. Most lawyers understand that judges have to pee sometimes. Take a break for coffee and donuts backstage. Studies show that a little snack does wonders for the judicial temperament.