Posner on oral advocacy in religion caseesri

kurt lash kurtlash2 at gmail.com
Fri Feb 14 07:04:35 PST 2014


I think folks should make sure they listen to the actual oral argument if they want to get a sense of whether the lawyer or the judge was out of line in this case.  

For example, at the key point where Posner strongly admonishes the lawyer for interrupting him, the lawyer had done no such thing.  Posner had just finished a lengthy statement, ending with "right?"  At that point the lawyer immediately began his response (which was along the lines of "no, that is not right") but Posner had no intention of letting him respond at all, and just continued talking over the lawyer.  Posner then grandiosely dressed down the lawyer for "interrupting."

My students and I listen to lots of oral arguments as part of my Supreme Court Seminar.  This is a rather obvious example of a judge whose only interest is in disrupting the lawyer's argument.  Fine.  Lawyers must prepare for such a possibility.  It does not, however, speak well for the judge.

Kurt Lash
Guy Raymond Jones Chair in Law
Director, Program in Constitutional Theory, History and Law
University of Illinois College of Law



On Feb 14, 2014, at 8:16 AM, Cohen,David <dsc39 at drexel.edu> wrote:

> And I think what Marci says is the key - a “skilled oralist” can take a yes/no question and finesse it.  But 1Ls need to be taught to answer the question first and foremost.  And if a yes or no is called for, in all but the rare case, one of those should be the first word out of their mouths.
>  
> David S. Cohen
> Associate Professor of Law
> Drexel University School of Law
> (215) 571-4714
>  
> From: Marci Hamilton [mailto:hamilton.marci at gmail.com] 
> Sent: Friday, February 14, 2014 9:06 AM
> To: David Bernstein
> Cc: Cohen,David; conlawprof at lists.ucla.edu
> Subject: Re: Posner on oral advocacy in religion caseesri
>  
> Federal judges and in particular appellate and Supreme Court Justices would disagree.  They get very agitated when it appears
> a lawyer is trying to have it both ways.  It disserves the client to resist.   The only appropriate answer is "yes/no, but with this exception..only to this extent..."  A skilled oralist has at the ready a tie-in to another point that can move the discussion onto other ground.  
>  
> More interesting to me, actually, was the substance of the discussion and the fact Judge Posner was unpersuaded by Notre Dame's arguments.
> If Notre Dame loses, do the Little Sisters of the Poor as well, or are they sufficiently dissimilar?
>  
> Marci
>  
> 
> On Fri, Feb 14, 2014 at 8:54 AM, <davidebernstein at aol.com> wrote:
> A lot of times, the correct answer is "yes but" or "no but." Or, in some case, you have a "have you stopped beating your wife" type of question, to which yes or no is not the correct answer.  An advocate has not obligation to give a simple yes or no answer when the correct answer is not a simple yes or no.
> 
> 
> 
> -----Original Message-----
> From: Cohen,David <dsc39 at drexel.edu>
> To: Marci Hamilton <hamilton.marci at gmail.com>; Rick Garnett <rgarnett at nd.edu>
> Cc: CONLAWPROFS professors <conlawprof at lists.ucla.edu>
> Sent: Fri, Feb 14, 2014 8:46 am
> Subject: RE: Posner on oral advocacy in religion caseesri
> 
> Thanks for forwarding. Whether Posner was rude or not, this gets across two big points that I make to my 1L students every year when they do oral argument exercises in my class - answer yes/no when called for and don’t interrupt judges.  Nice to have this to reinforce it for them.
>  
> David S. Cohen
> Associate Professor of Law
> Drexel University School of Law
> (215) 571-4714
>  
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marci Hamilton
> Sent: Friday, February 14, 2014 8:37 AM
> To: Rick Garnett
> Cc: Law & Religion issues for Law Academics; Law at lists-0.lists.ucla.edu; CONLAWPROFS professors
> Subject: Re: Posner on oral advocacy in religion caseesri
>  
> The one thing judges will not tolerate is prevarication when lawyers are  told to answer a yes/no a
> 
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton 
>  
>  
> 
> On Feb 14, 2014, at 8:31 AM, Rick Garnett <rgarnett at nd.edu> wrote:
> It is true that the oral argument (available online) is striking and revealing. And, it is true that at least one person involved should be embarrassed. 
>  
> Rick
>  
> Sent from my iPhone
> 
> On Feb 14, 2014, at 5:49 AM, "Steven Jamar" <stevenjamar at gmail.com> wrote:
> Judge Posner gives 1L lesson on oral advocacy to Notre Dame's lawyer on oral in freedom of religion case.  Pretty basic 1L stuff.  Embarrassing for the attorney — and his firm and school.
>  
> http://www.abajournal.com/news/article/Posner_tells_BigLaw_chief_stop_babbling_threatens_to_end_7th_Circuit_arg/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email
>  
> -- 
> Prof. Steven D. Jamar                     vox:  202-806-8017
> Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org
> Howard University School of Law           fax:  202-806-8567
> http://iipsj.com/SDJ/
>  
>  
> "Enduring high school is not the same as growing up Jewish in Prague or fighting in the French Resistance. I had no solid basis for being cool in that existential motorcycle James Dean absurdist chain-smoking hero sort of way, so I gave up being cool and settled for being pleasant."
> 
>  
> Garrison Keillor
>  
> 
>  
>  
>  
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>  
> --
> Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
> 55 Fifth Avenue
> New York, NY 10003 
> Direct: (212) 790-0215 | Secretary: #0326 | Cell: (215) 353-8984 
> Fax: (215) 493-1094 
> http://sol-reform.com
> Author of God vs the Gavel: Religion and the Rule of Law and Justice Denied: What America Must Do to Protect Its Children
> Columnist for www.justia.com
> 
>     
> 
> 
> 
> _______________________________________________
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