Does It Make a Difference to Have Your Client Present at Oral Argument?

Every glimpse into the collective minds of appellate justices usually helps, especially with regard to oral argument, but Donna Bader provides an interesting insight at Appeal to Reason that I’m not sure what to do with. Her observation:

Once I questioned some justices about whether they look around the courtroom during oral argument to figure out who the parties [are]. If the attorney sits next to the clients, the answer is obvious. Sometimes, clients sit in the back, leaving the attorney alone to prepare for oral argument. Surprisingly, the justices admitted they had a certain curiosity as to who the participants were. More than that, there was also a curiosity as to why clients failed to show up for oral argument when the court’s decision could have a huge impact on their lives.

Her post falls short of saying how this curiosity typically impacts the thinking of a justice. Usual local practice would make it impossible for it to have a lot of impact unless the justices were willing to engage in a lot of guesswork, as I rarely see clients seated at counsel’s table. But even if the presence of clients were readily determinable, I think that this would have, at most, negligible impact — unless certain things we appellate lawyers tell ourselves and our clients about the appellate process are wrong.

The most gifted trial lawyers can make for lousy appellate lawyers — and vice versa — without tailoring their presentations for each forum. A commonly noted difference between the trial and appellate courts is that in the trial court, a lawyer tries to set a mood and may even seek to sway jurors based on emotional appeals, while the appellate lawyer’s presentation must be restricted to reason (which is not to say that the appellate lawyer cannot also tell a compelling story). Unless we’ve been kidding ourselves about this distinction, I have to think that the presence or absence of the client at oral argument is largely immaterial and impacts only the justices’ curiosity. Which may account for why Bader found this curiosity surprising.

Peremptory Challenges to Appellate Justices and Posting of Draft Appellate Opinions

Don’t get too excited!  The title of this post does not reflect changes to the Code of Civil Procedure. 

Instead, the title summarizes two of Nine Ideas for Improving the Administration of Justice offered by Los Angeles attorney Edwin B. Stegman in his guest column in the September 2007 California Bar Journal.  Specifically, Stegman suggests the following:

3.  We desperately need a CCP §170.6-type peremptory challenge of incompetent and unreasonable appellate justices and divisions.


7. Before oral argument, attorneys should be permitted to review research attorneys’ notes and appellate draft opinions. There is no advantage to secrecy. In some courts, research attorneys make the decisions. Sometimes they make mistakes. Litigators should have an opportunity to discover the mistakes and point them out to the judge. Furthermore, oral arguments would be more focused, saving time.

Let’s take these one at a time in the extended entry. . . .
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Making the Record with Anger Draws Discipline

The Legal Profession Blog brings us an example of disrespect for the court that is crystal clear, unlike the “french fry” comment that caught so many people’s attention at the end of May and again last month.  At the hearing on a continuance motion, a criminal defense lawyer, who had signed his papers “Indignantly submitted,” insisted that he would “jam these pleadings down the throat of the record as much as I feel I need to.”  Not the recommended approach, to say the least.  Check out the post at Legal Profession Blog for the consequences of this conduct.