Monday, October 15, 2012

In Defense of Formality

I have always admired Supreme Court litigator Tom Goldstein, mainly because of his success story. Lacking the requisite clerkship and Ivy League credentials to gain entry into the Supreme Court bar, Goldstein decided he would make it on his own.  His approach was unorthodox for the time: he would scour the federal reports for circuit splits and contact the parties directly to solicit their business.  Goldstein's hustle paid off: he founded his own firm, was elected to the partnership at Akin Gump where he co-headed the firm's Supreme Court practice during which time he founded the highly influential SCOTUSBlog.  

As a result, Mr. Goldstein has enjoyed the privilege of arguing on over two dozen occasions before the Court.  Because of the frequency with which he has appeared, he has had the luxury to act a little more at ease at the dais than, say, an advocate making his first appearance.  

Mr. Goldstein's latest argument in Moncrieffe v. Holder, however, highlights the danger of being just a bit too relaxed at oral argument.  As described by SCOTUSBlog writer Lyle Denniston, "[Mr. Goldstein] has a habit, sometimes disarming to the Justices, of being a little bit too familiar, and a little too fast with a quip."  According to Mr. Denniston, Mr. Goldstein deployed a boxing analogy - since the case preceded the more widely publicized of Fischer v. University of Texas, he called his case "today's undercard" - that fell flat at the bench. 

To be fair, Goldstein simply told a bad joke to open his presentation.  A sin, but hardly cringeworthy.  For an example of the latter,  I witnessed one argument wherein lawyer representing a co-op owner in a dispute with the board directly attemptws to elicit the judge's sympathy by saying, in effect, "Justice So and So, you live in a co-op so you know all too well the hurdles this board made my client jump through."  A well-known litigator from a highly regarded New York firm took a similar approach in another case: "Your Honor, you once served as counsel to the governor so you must be very familiar with the difficulties inherent in crafting crystal clear statutory language."  A few judges exchanged knowing glances while the lawyers in the gallery shifted uncomfortably in their seats. 

The takeaway is this: never veer from the formal environment that dominates an appellate oral argument, and always stick to the record and issues at hand.  Even if the justices roared with laughter at Mr. Goldstein's joke, it would not have done little, if anything, to advance his argument.  Meanwhile, the lawyers above who expressed an almost feigned familiarity with the judges on the panel came across as fake.  Rarely has an advocate lost credibility by taking too formal approach to presenting his case.  Stick to the basics and let your mastery of the record and issues build your credibility.

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