The Great Change: Turning Cathy into a Lawyer

Law students pretty much anywhere at some time or another during their studies take a moot court course. It's a class in appellate advocacy, where students learn how to draft compelling briefs and then speak before a panel of judges.

We are often told (or at least I remember being told) how important it is to show the utmost respect for the judges. That lesson is mostly taught in the context of the presentation of oral arguments – be sure to say "Yes, your honor," or "No, your honor," and show them as great a deference as possible. Do not get a judge angry with you and risk having him hold it against your client.

The same admonition is just as applicable for the brief, however, as it is for the oral argument. Do not offend the presiding judges' sensibilities by showing anything less than the utmost respect for the lower court judge, no matter how wrong you think his decision was.

Unfortunately, the attorneys for Wal-Mart may have missed class that day, because in their brief they apparently used a lot of grandiose language about how their client's due process rights were "trampled" by the lower court judge. And at the hearing yesterday one of the judges called them on it.

"I want to ask you about some of this language you used," he began slowly, and then read back a handful of miscellaneous sentences in a subtly dismissive way. At first it was hard to tell where he was going with it – was it just another question about Wal-Mart's argument? – but then, at least to the law students in attendance, it became clear that he was upbraiding the attorney.

"You need to be courteous to the judge," he chastised Wal-Mart's lawyer, but your language doesn't show him any respect. "You're at a big law firm and you haven't learned this lesson yet?"

The judge went on. "Do you really think this language is going to persuade us?"

While the audience may have grasped what was going on, the attorney may not have, because his immediate response was, "That is our hope."

Maybe the attorney was oblivious, or maybe he was just good, because he didn't crumble under the pressure. While the crowd squirmed, he kept his composure. He uttered several times, "No disrespect meant to Judge Jenkins," and then, like a good advocate, he reframed the problem in terms of the client's interests. "We really feel Wal-Mart's due process rights are compromised by the decision," he reiterated, and eventually, after several awkward and tense minutes, the storm passed.

But not before the presiding judge made clear, "You owe Judge Jenkins an apology."

I don't think the case will turn on this issue, but I'm pretty sure that if you are an appellate attorney this is the kind of thing you never want to hear from the judge.

Edit: Actually, if I recall correctly the judge said something like, "If you ever see Judge Jenkins again, you owe him an apology." It seems like sort of an inevitability that he will, since this case will be returned before him one way or another after the appeals court rules. So it was probably not a good move to antagonize him this early in the game...