Externship Entry #2
All events taking place on or before Feb. 16.
“We’re kindred spirits,” said the judge over lunch the other day, “but it ends there.”
He was referring to staunchly liberal former U.S. Supreme Court Justice John Paul Stevens and his affinity for bow ties. The bow tie is part of Justice Catterson’s standard attire - which generally consists of a button-down shirt (no suit jacket), khakis, and rubber-soled shoes ... when it’s not covered by his black judicial robe, of course. And his conservative political views on his sleeve.
“There’s one other on the Supreme Court,” he continued, “- and I hesitate to say it, because he’s controversial...” It didn’t take much of a leap of logic for one of the legal secretaries to settle on Clarence Thomas. But, of course, he wasn’t much like Justice Thomas, either.
For one thing, he asked a lot of questions on the bench.
“How is it that he can just sit there and not ask questions for five years?” I asked.
“You’re just used to this judge,” said Joanna. Apparently most justices were more from the say-little-or-nothing school. And it’s true. From what I’ve observed in oral arguments, Justice Catterson frequently monopolizes the talking - in a lot of the cases, he and the presiding justice are the only ones asking much of anything. Some of his colleagues don’t speak more than once an afternoon.
“Sometimes, I play the role of attorney for them,” he said with a smirk. I knew what he meant - exploiting flaws in arguments for both sides, or digging up case law or testimony that seems to have been passed over or not given much weight, but appears wholly relevant. Joanna and Jean, his legal secretaries, laughed knowingly.
“But isn’t the point of oral argument for the judge to fill in holes in the briefs and clarify points they don’t understand?” I said.
Apparently there’s a movement in the appeals courts that thinks otherwise. And if Justice Thomas is content just to sit on the bench, rolling his eyes and looking bored, because he doesn’t believe in asking questions, well, he’s far from the only one who wants to do away with oral arguments.
“Here’s what I always tell law students,” said Justice Catterson, “Don’t let them tell you that oral arguments are a fool’s errand. Sometimes, a convincing oral argument can decide the case.”
I saw for myself a few weeks earlier just how powerful an oral argument can be. The case was a class action involving a contract breach. The document was four pages long, but all the information that needed to be filled out - including the signature line and the merger clause - was on page 1. However, there was a hidden cost provision on page 2, 3, or 4. From reading the law report, I (along with the supervising attorney, apparently, who enclosed a note at the top) was a little confused on who was in the right here; was everyone who signed this document just given page 1, or was the entire “booklet” enclosed on a clipboard of papers? It seemed like the company who wrote the contract was trying to pull a fast one, but it all depended how careless the clients signing their name were, whether they’d had a fair chance to review the whole document.
The lawyer arguing for the contractor was straight out of textbook white-shoe corporate lawyering - well-coiffed shock of white hair, glasses, overconfident. He slammed his papers on the table, and waved in the air a folded, cream-colored piece of paper with writing on both sides. “This is the contract,” he said, opening it and turning it over. “Not a copy. You ask anyone who signed it what they were presented with, they’ll say this document.”
The theatrics went on for ten more minutes, before the opponents’ lawyer - a bald man with a thick Indian accent - got up and started shouting “This is a scam!” To which the company’s attorney was well-prepared with a bullet-pointed rebuttal, complete with references to specific passages of court transcript and other concrete evidence.
Melodramatics aside, I saw the company attorney’s point: nothing was hidden; it was all right there. Although the question still remained whether the contract topped a stack of papers so that the folks signing it would be discouraged from looking past page 1, I found myself siding with the contractor on this one; to me, it seemed more clear that one has to be a little careless to sign the front of a folded piece of paper without looking inside.
The case is still pending, so I’m not sure what was eventually decided, but I guess if an oral argument can persuade me - and I have access to many of the same documents that the justices have, albeit less time to review them and a lot less knowledge of the law - there must be oral arguments that can tip the scales one way or another on the bench.
In his New York Law Journal article about the New York state appellate system that I had to read my first day on the job, Justice David B. Saxe revealed that when he read the briefs submitted by both sides, he tended to skip over all the “boilerplate material.”
“Briefs are laden with excessive discussion, addressing such generalities as the applicable standard of review or the requirements for summary judgment, including string cites,” he wrote. “... Normally, an appellant’s brief contains multiple points, but usually one or two are truly dispositive, and the justice will usually focus most attention on the salient issues.”
I think oral arguments do serve the purpose of further cutting through the pages and pages of possibly inconsequential nonsense and getting to the heart of the matter. Justice Catterson’s style of conversation often seems to do that, too. It’s amazing how lawyers can complicate the simplest of issues into lengthy arguments rooted firmly in the air. I would think that most arbitrators are attuned to what’s really important and can hone in on those little gold nuggets, but maybe not; maybe when you have a gifted writer churning out the briefs, it’s easier to get lost in rhetoric.
Maybe that’s also why so many cases are wrongly decided at the trial level; the real issues get buried among overtrumpeted minutiae. I don’t necessarily believe that all appellate justices are necessarily smarter than their lower-court counterparts; it’s just a different kind of argument that takes place on appeal. When all your months (often years) of research are reduced to an (often interrupted) under-fifteen-minute speech, what comes out is what matters. And perhaps Justice Thomas’ tactic of remaining mute on the bench for five years plays into that. Maybe he believes in just letting the attorneys tell their stories and see if they can self-regulate what their real argument before the court is here. And perhaps because those arguments that actually hold weight in a courtroom should be self-evident to those on the bench, some justices feel no need for further meddling.
----
I had "spring break" this week, by the way. Which is ridiculous, considering I've only had, like, two full weeks of school. And I'm kind of stressing about the hours thing again. The judge switched his day this week, so I ended up missing out on a full day's worth of hours. That combined with that he hasn't been in the past two Mondays likely puts me very much behind indeed. I guess I should tell someone; I'm just afraid they're going to blame this all on me, as in, it was "my responsibility" to do a certain amount of hours, and I knew that going in, so I should've anticipated this, and I better find a way. I'm immensely bothered by that possibility.
“We’re kindred spirits,” said the judge over lunch the other day, “but it ends there.”
He was referring to staunchly liberal former U.S. Supreme Court Justice John Paul Stevens and his affinity for bow ties. The bow tie is part of Justice Catterson’s standard attire - which generally consists of a button-down shirt (no suit jacket), khakis, and rubber-soled shoes ... when it’s not covered by his black judicial robe, of course. And his conservative political views on his sleeve.
“There’s one other on the Supreme Court,” he continued, “- and I hesitate to say it, because he’s controversial...” It didn’t take much of a leap of logic for one of the legal secretaries to settle on Clarence Thomas. But, of course, he wasn’t much like Justice Thomas, either.
For one thing, he asked a lot of questions on the bench.
“How is it that he can just sit there and not ask questions for five years?” I asked.
“You’re just used to this judge,” said Joanna. Apparently most justices were more from the say-little-or-nothing school. And it’s true. From what I’ve observed in oral arguments, Justice Catterson frequently monopolizes the talking - in a lot of the cases, he and the presiding justice are the only ones asking much of anything. Some of his colleagues don’t speak more than once an afternoon.
“Sometimes, I play the role of attorney for them,” he said with a smirk. I knew what he meant - exploiting flaws in arguments for both sides, or digging up case law or testimony that seems to have been passed over or not given much weight, but appears wholly relevant. Joanna and Jean, his legal secretaries, laughed knowingly.
“But isn’t the point of oral argument for the judge to fill in holes in the briefs and clarify points they don’t understand?” I said.
Apparently there’s a movement in the appeals courts that thinks otherwise. And if Justice Thomas is content just to sit on the bench, rolling his eyes and looking bored, because he doesn’t believe in asking questions, well, he’s far from the only one who wants to do away with oral arguments.
“Here’s what I always tell law students,” said Justice Catterson, “Don’t let them tell you that oral arguments are a fool’s errand. Sometimes, a convincing oral argument can decide the case.”
I saw for myself a few weeks earlier just how powerful an oral argument can be. The case was a class action involving a contract breach. The document was four pages long, but all the information that needed to be filled out - including the signature line and the merger clause - was on page 1. However, there was a hidden cost provision on page 2, 3, or 4. From reading the law report, I (along with the supervising attorney, apparently, who enclosed a note at the top) was a little confused on who was in the right here; was everyone who signed this document just given page 1, or was the entire “booklet” enclosed on a clipboard of papers? It seemed like the company who wrote the contract was trying to pull a fast one, but it all depended how careless the clients signing their name were, whether they’d had a fair chance to review the whole document.
The lawyer arguing for the contractor was straight out of textbook white-shoe corporate lawyering - well-coiffed shock of white hair, glasses, overconfident. He slammed his papers on the table, and waved in the air a folded, cream-colored piece of paper with writing on both sides. “This is the contract,” he said, opening it and turning it over. “Not a copy. You ask anyone who signed it what they were presented with, they’ll say this document.”
The theatrics went on for ten more minutes, before the opponents’ lawyer - a bald man with a thick Indian accent - got up and started shouting “This is a scam!” To which the company’s attorney was well-prepared with a bullet-pointed rebuttal, complete with references to specific passages of court transcript and other concrete evidence.
Melodramatics aside, I saw the company attorney’s point: nothing was hidden; it was all right there. Although the question still remained whether the contract topped a stack of papers so that the folks signing it would be discouraged from looking past page 1, I found myself siding with the contractor on this one; to me, it seemed more clear that one has to be a little careless to sign the front of a folded piece of paper without looking inside.
The case is still pending, so I’m not sure what was eventually decided, but I guess if an oral argument can persuade me - and I have access to many of the same documents that the justices have, albeit less time to review them and a lot less knowledge of the law - there must be oral arguments that can tip the scales one way or another on the bench.
In his New York Law Journal article about the New York state appellate system that I had to read my first day on the job, Justice David B. Saxe revealed that when he read the briefs submitted by both sides, he tended to skip over all the “boilerplate material.”
“Briefs are laden with excessive discussion, addressing such generalities as the applicable standard of review or the requirements for summary judgment, including string cites,” he wrote. “... Normally, an appellant’s brief contains multiple points, but usually one or two are truly dispositive, and the justice will usually focus most attention on the salient issues.”
I think oral arguments do serve the purpose of further cutting through the pages and pages of possibly inconsequential nonsense and getting to the heart of the matter. Justice Catterson’s style of conversation often seems to do that, too. It’s amazing how lawyers can complicate the simplest of issues into lengthy arguments rooted firmly in the air. I would think that most arbitrators are attuned to what’s really important and can hone in on those little gold nuggets, but maybe not; maybe when you have a gifted writer churning out the briefs, it’s easier to get lost in rhetoric.
Maybe that’s also why so many cases are wrongly decided at the trial level; the real issues get buried among overtrumpeted minutiae. I don’t necessarily believe that all appellate justices are necessarily smarter than their lower-court counterparts; it’s just a different kind of argument that takes place on appeal. When all your months (often years) of research are reduced to an (often interrupted) under-fifteen-minute speech, what comes out is what matters. And perhaps Justice Thomas’ tactic of remaining mute on the bench for five years plays into that. Maybe he believes in just letting the attorneys tell their stories and see if they can self-regulate what their real argument before the court is here. And perhaps because those arguments that actually hold weight in a courtroom should be self-evident to those on the bench, some justices feel no need for further meddling.
----
I had "spring break" this week, by the way. Which is ridiculous, considering I've only had, like, two full weeks of school. And I'm kind of stressing about the hours thing again. The judge switched his day this week, so I ended up missing out on a full day's worth of hours. That combined with that he hasn't been in the past two Mondays likely puts me very much behind indeed. I guess I should tell someone; I'm just afraid they're going to blame this all on me, as in, it was "my responsibility" to do a certain amount of hours, and I knew that going in, so I should've anticipated this, and I better find a way. I'm immensely bothered by that possibility.