Hee-Haw at SCOTUS

We don’t want you to miss the really important news from on high. We congratulate the New York Times and its Supreme Court reporter Adam Liptak for finding room during this week of Supreme Court opinions coming down like rain, for making sure that we know how many times the audience laughed during the oral arguments in the Obamacare case. Adam Liptak, Reviewing the Health Care Arguments, Laugh Count Included, N.Y. Times, June 26, 2012, at p. A14. In case you keep track of such stuff, it was “an exceptionally garrulous and jocular bench.” Hee haw!

Justice Breyer walked off with the honors as Chief Blabbermouth, with a half-hour of speechifyin’ followed closely by Justice Sotomayor, the “Wise Latina,” who demonstrated gender equality by coming in second, “just 30 seconds shy of half-hour.” Altogether, the Justices spoke for a total of 162 minutes (that’s 2.7 hours) or 43 percent of the time. Yikes! Think about it: Their Lordships took up close to half the time consumed by all the lawyers put together. Their expostulations thus come to an average of 20.25 minutes per Justice (Justice Thomas, as usual, sensibly kept quiet, relying as ultimately they all do, on the briefing). That comes to 68% of the time usually allocated to each side’s lawyer doing the arguing.

As for the hee-haw part, “[t]here were 63 episodes of public laughter, or about 10 laughs per hour” (or, if arithmetic is your thing, one every six minutes.

The champion victim of all that was Solicitor General Donald G. Verilli, Jr., who was interrupted by the Justices 180 times, or on average every 22 seconds. He was interrupted after speaking for 10 or fewer seconds more than 40 percent of the time.  Reminds us of the frustrated, apocryphal appellate lawyer who, after being verbally pummeled from on high, concluded his presentation by saying, “I submit the matter on the argument of the court.”

Having been an active appellate lawyer for some 40 years, give or take, your faithful servant can’t help wondering what the Justices thought they were accomplishing. No one can rationally accuse us of being overly sympathetic to government lawyers who in our experience are coddled by judges and as a result tend to be arrogant, and think they can get  away with anything. Check out our piece in the Los Angeles Daily Journal of March 13, 2012, entitled Prosecutorial Misconduct Matters Only For Certain Cases, and see 6 Loyola L.A. L. Rev.  447 (1972). But even so, they are advocates representing clients whose position they should be able to articulate without being constantly hectored from the bench. What good do the Justices think is to be derived from not allowing the lawyer on the short end of a controversy from expressing whatever he has to say on behalf of his client? There are lots of ways for judges to chastize a lawyer’s performance without public bullying that interferes with the lawyer’s presentation, particularly when their target is  forbidden to respond in kind, no matter how deserved an acerbic response might be.

Apart from earning our daily bread in the appellate courts for decades, we also taught advanced appellate advocacy at a law school with a reputation for producing graduates able to hit the ground running, and assume the role of effective courtroom advocates from the git-go. And we always counseled the tads not to try to be funny before appellate courts. There is nothing more professionally pathetic that lawyers who think they are uttering a funny in a courtroom, but nobody laughs. As the late, lamented California Supreme Court Justice Otto M. Kaus wisely counseled, there is a division of labor involved here: “We tell the jokes,” said Kaus, “you laugh.”

In our 40+ years of appellate arguments, we made two — count ’em, two — jokes in oral aruments, both before the California Supreme Court. One in a case that couldn’t possibly be lost (yes, Virginia, incredible as it may sound, there are a few such cases), and the other in a case that couldn’t possibly be won (and there are plenty of those, especially if you practice eminent domain law on behalf of property owners). Their Lordships chuckled appreciatively both times, but the results were predictable — the winning case won, and the losing case lost. And therein lies the moral of this story.

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