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Oral Argument in the 7th Circuit? More like Oral Masscre!

Here is an example of how appellate court judges do in fact come down from the hills after the battle has raged and do shoot the wounded. In this case, the Seventh Circuit should be shooting the wounded (or, at least the counsel for petitioner).

The case is Illinois Bell v. Global NAPs Illinois. It presents issues of interstate commerce ? the Federal Communications Act of 1934, setting of rates by the Interstate Commerce Commission, contract law and diversity jurisdiction. This case involves an issue involving one of the parties to this suit.

In my day as an associate justice of the Supreme Court of the United States, I heard quite a few very skilled advocates. And, as someone who once said of John W. Davis ?of all the persons who appeared before the Court in my times, there was never anybody more elegant, more clear, more concise or more logical . . .? I express shock and surprise. Below, I summarize for those interested some of the crucial rules violated by both counsel:

1. Know the basic and mundane responsibilities of your job: For example, counsel for petitioner places the subject of jurisdiction (the first concern of every court when presented with a claim for resolution) third among the three points he intends to address. While the court makes it clear they want to discuss jurisdiction, counsel had already informed them that he was going to leave it off altogether. And the reason the court is so upset with him to begin with is that he failed to address jurisdiction fully . . . on brief. (In oral argument, after being asked to address jurisdiction, he compounds his mistake by noting AGAIN that it was his third and last point).
2. Know the record from cover to cover: Counsel for petitioner does not seem to recognize and understand how the separate party provision applies to the structure of corporations owned by his client that may or may not allow the 7th circuit to consider this appeal. As opposed to separate claims for relief.
3. The strongest point of appeal should be argued first ? when asked for his strongest argument . . . there is . . . silence.
4. Change places, in your imagination of course, with the court: If either counsel had considered even for a moment what kind of questions might animate discussion, what might concern the court about this narrow topic, perhaps this all could have been avoided.
5. State the applicable rules of law on which you rely: Of course, this rule assumes that you know and understand the rules of law, and that you can fall back on a case or cases to support a position.
6. Always ?go for the jugular vein?: Because neither one had much of an argument and had briefed so poorly, it ended up being the court that went for the jugular. One can imagine the two opposing counsel limping out of court holding each other up, and commiserating over a beer.

One positive thing to note? neither counsel ever let it get personal. While being battered to death, they both kept what composure they could muster for being so unprepared.

Full post as published by Supreme Dicta on September 12, 2008 (boomark / email).