How many times have you sat through the judges’ introductory blabberation at oral argument about how you’d better make it snappy because “We’ve read your briefs” and “We actually do know the law” (dutiful laugh from the sycophants), only to be faced with a panel that’s totally clueless about your case?
The “Appeals with Attitude” award of the year goes to Attorney Brassballs who, as recorded on court listener.com started off his argument in the Second Circuit with, “I think our briefs were rather thorough and addressed all the issues, at least to my satisfaction. So my question to the Court is, ‘Are there any questions?'”
One of the three judges answers, “No,” evidently relieved to have one less argument to sit through.
But Judge Denny Chin, sensing some lèse majesté, (“addressed all the issues to my satisfaction”)? doesn’t let this go by.
The case is about the process lawyers have to go through to be admitted to practice in federal court. This is what the Second Circuit has time for? While our incarcerated clients’ habeas petitions gather dust in chambers file cabinets? But we digress.
“What’s the injury?” asks Judge Chin. “If your client doesn’t like the affidavit he can go get another one.”
This was apparently not on point, because Lawyer Smartmouth retorts, “Are you serious, Judge? With all due respect, that has nothing to do with the case.”
“Siddown,” opines the judge.
“Okay, thank you. I see that you read the briefs, Judge.”
“Inappropriate, disrespectful and discourteous!” hollers the judge.
The smirking Government lawyer strides up to the podium. “Plaintiff raises no issue of law. . . . Unless there are any questions. . .” He can hardly wait to get back to the office to tell the guys.
But Lawyer Chutzpah wants rebuttal.
“YOU’VE WAIVED YOUR REBUTTAL TIME! TAKE THIS GENTLEMAN OUT OF THE COURT! SIR, SIR, LEAVE, LEAVE.”
Sometime after we started writing this post, that part was bowdlerized from the courtlistener audio. Which doesn’t change the fact that the lawyer was kicked – er – escorted out of the courtroom.
According to the NY Law Journal, he’s bloody but unbowed:
In an interview hours after the hearing, Bank said he could have been more cordial, but he didn’t regret his comments to Chin. “Judge Chin’s point—it certainly indicates he didn’t know what the case was about,” Bank said. “Ninety percent of the case was what [my client] objected to, rightly or wrongly: The steps he would have to go through to even get the affidavit.”
Couldn’t he have explained that to Judge Chin instead of waiting to be interviewed by some parakeet-cage-liner newspaper?
“Oh, I see,” the judge would have said. “Silly me, it’s not about whether your client doesn’t like the affidavit, it’s about the labyrinthine process he has to go through to get one. We can’t thank you enough for clarifying that.”
But as they say, there are three oral arguments: the one you plan to make, the one you make and the one you realize afterwards you shudda made.
Once again great piece. That attorney was a complete jerk. His client should sue him for malpractice.
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Thanks. Yeah, the attorney told the court he wasn’t going to make an argument but only answer questions, “Otherwise I’d just be essentially reading from or reiterating the points in my brief.” That may be true, but that’s what we get the big bucks for doing: spoonfeeding our briefs to the courts.
It is also a complete misunderstanding of Second Circuit practice. In many jurisdictions, oral argument is like a unicorn that is spoken of and never seen. Waiving argument in one of those courts is a sign you have so little confidence in your brief that you dare not show your face. The Second Circuit has a long history of extending oral argument in the majority of cases. I have witnessed pro se litigants appear. I have shown up to what seemed to be a lengthy docket only to find many parties waived appearances. Judge Chin is correct: if you are going to show up, then do not waste everyone’s time.