Just a quick thought, and a query, prompted by an interesting post over at the Appellate Law & Practice blawg. In the AL&P post, S.COTUS opined disapprovingly that it was “amateur hour” at the First Circuit Court of Appeals because a Harvard 3L was preparing to deliver oral argument on a case that would set precedent for and throughout that circuit. I commented in response, based on my experience both as a student attorney at the Tulane Environmental Law Clinic and as a judicial law clerk to Judge James Dennis of the U.S. Fifth Circuit Court of Appeals, that I felt there were numerous safeguards in place to protect the First Circuit from bad law being made by a student attorney, not the least of which being the fact that it was not the student who would be writing the opinion, but a judge who would likely have his clerks thoroughly and independently research the issues in formulating the opinion. Responding to my comment, S.COTUS questioned my reliance on this safeguard, as it is an experienced appellate attorney’s role to use her knowledge and experience to “manipulate” the judges toward the opinion favorable to her client. And here’s my thought, and query:
My experience and observation is that judges on a panel at the federal appellate level already have a firm grip on the issues in a case from the brief prior to oral argument, and have even already begun to discuss possible outcomes prior to the argument. The oral argument becomes a forum for the judges to use the attorneys to make points to their colleagues on the panel, and the experienced oral advocate realizes this role and anticipates how to answer a question depending on the intra-panel dynamic revealed by the questions before him or her. In this sense, I suppose I think the judges are manipulating appellate counsel for their own purposes, not the other way around, and the skill required of counsel is to understand this framework and work within it. But we all have our own experiences and observations on this. What do you think? What is your role in front of an appellate panel? Are you the manipulator, the manipulatee, or is it more a collaborative effort of mutual “manipulation,” to borrow S.COTUS’s term?
One Comment
I think S.COTUS is overly concerned about the possibility of a 3L law student creating “bad law”. The only tool a 3L can use before the appelate court is the law itself. The idea that a disciple of the law is somehow automatically inferior just because she is not on the business side of the bar is a red herring. What is the belief? That a person gains confidence the milisecond after they are sworn in? There are many, many law students with the ability to operate at a high level of competence and too many lawyers who do the bare minimum on behalf of their clients. When a 3L argues before the court, the court has the same duty it always has: to interpret the laws and render a decision consistent with same.