I attended my first video conference oral argument in front of the Court of Appeal today. It was a bit surreal. Normally oral argument is such an austere process, with four robbed justices walking in at the assigned time and taking their seats (only three of them hear any particular case). But with Covid-19 and the concomitant remote conferencing, the impressive veil has been lifted a bit. Each justice signs in and struggles with the feed, with personal bric-a-brac visible in the background. A lot of gesturing and pantomiming is involved to get each one properly into the conference.
In the hours leading up to the conference, I brainstormed a process that worked better than I had imagined. I was originally going to set up a laptop in the conference room (there is no angle in my office that I would want to broadcast), but I opted instead for an all-in-one computer we have in one of the offices, because the desk faces the wall. I needed that wall space, as I will explain in a moment.
What led us to this.
I prevailed at trial (naturellement), and on a fairly simple case, the counsel for the appealing defendant had set forth more issues in his appeal than I had ever before witnessed. I was confident that I could respond to any issue raised during oral argument, but I lack the Eidetic memory that allows me to recall every case and record citation relating to so many points. I’ve seen some attorneys use a three-ring, tabbed binder with all the necessary information, but I’ve never seen it deployed well. A justice chimes in with an issue, and there is a long pause while the attorney tries to tab to the desired information. Most of the time the Justices don’t wait, and move onto the next issue, with the prior issue never having been addressed. I realized the realities of the video conference might open some possibilities.
For each appeal issue, I created a “cheat sheet” with everything I would need to respond to any given issue, including the salient facts, references to the record, and summaries of all the cited cases relevant to that issue. I then, with a small piece of tape, taped each cheat sheet on the wall behind my monitor/webcam. I thus created a “wall of arguments,” and with a slight eye movement I could instantly go to any issue the Justices might bring up. I thought it likely that the Justices would see that I was looking at something behind the camera, so I intended to come clean and make light of it, as in, “Can you tell that I have my notes taped to the wall?”
In reality, it should not have been this simple. Oral argument should not just regurgitate the same issues in the same way they are set forth in the briefs. You need to marshal the same facts and issues, but present them from a different perspective. Opposing counsel should have argued in some new manner that would have forced me to think on my feet. But based on his briefs, I knew this attorney had no appeal experience, and that he would basically just be reading from those briefs. So I had the luxury of knowing precisely how he would argue, I just had to be ready to respond to the 12 or so points he would select out of the many, and to be ready when one of the Justices selected the most obscure of the 75 cases cited in the brief, and asked me to distinguish the facts.
The Oral Argument.
It turned out I didn’t need to explain why I was staring at the wall. As anticipated, counsel argued from his briefs with no deviation, and as he make each argument, I would casually reach up and pull down the matching cheat sheet, and place it in the stack in front of me. When it came time for my response, I began with my own argument, and then just went one by one through the cheat sheets to make sure I addressed each of the issues raised by opposing counsel. During opposing counsel’s presentation, he had stated that he had in fact objected to certain testimony during the trial, but could not provide the page and line number from the Reporter’s Transcript. On my cheat sheet, I had written down where in the Reporter’s Transcript that testimony had occurred, and thus was able to direct the Justices to that point to show that there had been no objection.
When the argument was over, my client, who had been watching the proceedings from France (isn’t technology amazing?), emailed to congratulate me on my smooth presentation.
But now to the lessons learned (or more accurately, lessons that were reinforced).
1. Some lawyers are crazy.
Everyone involved in this process – the Justices, attorneys, courtroom staff, and observers – attended by webcam or phone. The attorneys had the option to be on camera or just on the phone. One of the attorneys who decided to appear by video, was wearing a mask. I would be inclined to give her the benefit of the doubt, and assume that she had people in the room with her, and that’s why she was wearing a mask, but that doesn’t really withstand scrutiny. Rather than talk through a mask, wouldn’t you just have any people leave the room? I’m left to conclude that she had to have been virtue signaling, and wanted to show that she was not running the risk of infecting us through the camera.
2. I am so glad I decided not to be a criminal defense attorney.
Given my background (I’ll let you decide what that was), criminal law would have been a natural choice. I considered, for about 15 seconds, becoming a criminal defense attorney, but decided I just didn’t want to have to deal with criminals.
There were two criminal appeals before our civil appeal, and the attorneys arguing on behalf of the criminals just looked beaten down. The attorneys representing the state were fresh and sharply dressed (even though appearing from your home or office, counsel is warned to dress as normal for court), but the criminal defense attorneys looked tired and disheveled. The first one never looked at the camera. Not in a, “I’m looking at notes I have taped to the wall” way, but more of a “I can’t look you in the eye while I’m making these arguments to defend a murderer” way.
In that first case, based on what I gleaned from the argument, three suspects entered a house and killed the occupant. The convicted criminal who was appealing had been charged with burglary, for entering the house with the intention to commit a crime, and for the actual murder. His defense counsel had placed enough doubt into the minds of the jurors as to who actually committed the murder, that he was acquitted on that charge, even though he literally had the victim’s blood on his hands. He was, however, found guilty of burglary. Incredibly, even after having dodged a bullet on the murder charge, he nonetheless appealed, arguing that if he wasn’t found guilty of the murder, he shouldn’t have been found guilty of the burglary.
Apparently the law is quite clear on this point, and the Justices weren’t having any of it. Defense counsel kept saying that the law was nuanced, but could never explain why. God save me from every having to make that kind of argument.
The second case wasn’t nearly as extreme. The suspect beat up a guy at a bar, and when he returned to the bar the following night, the victim was there as well. He walked up to the victim with his hand extended, as though to shake hands and apologize, and when the victim accepted this gesture of peace, the suspect wailed on him again. The victim wasn’t willing to let bygones be bygones this time, and had the guy arrested.
Apparently an assault by way of a “sneak attack” is an aggravating factor, and the suspect received a harsher sentence. The criminal appeal attorney was there to argue that it’s not a sneak attack if you walk up to someone under the guise of shaking their hand, even if you have the intent to hold onto that hand while you beat them senseless. You see, it wasn’t a sneak attack because the victim saw him coming. If the victim was stupid enough to take his hand, that’s just his own fault, and he shouldn’t be surprised. Again, I made the right choice.
3. Don’t handle cases outside of your practice area unless you are willing to do the work.
Appeals are kind of a natural extension of being a litigator, because your victory will be appealed, or your loss will need to be appealed. That’s how I got into it (the victory part, not the loss part). But like any other area of the law, you need to put in the hours to get up to speed.
In case you don’t handle appeals, there are two points that an attorney must absolutely understand about appeals. The first is that the appeal court does not reweigh the evidence. Under the “substantial evidence” rule, if there was evidence submitted that supports the judgment, it will not be disturbed on appeal. And closely aligned with this rule, when setting forth the evidence, the appellant must identify all of the evidence, not just the evidence that supports appellant’s argument.
And another point, not nearly as important but annoying as hell to the Justices; don’t request oral argument unless you intend to argue. After a case is fully briefed, you receive a notice from the court asking whether you want to orally argue. Right there in the request form, it reminds you that the Justices have read the briefs and that you should not request oral argument if you are just going to say what is already in your briefs. When you think about it, on that basis no one should ever request oral argument since everything should already be argued in the briefs, and you certainly can’t show up at court and bring something up for the first time. That’s why I always find a new angle to argue. For example, in my last oral argument before this one, where my anti-SLAPP motion had been denied by the trial court, I stressed a public policy argument on appeal. I can’t say that it carried the day, but in reversing the trial court’s denial of my motion, the Court of Appeal opinion spent a great deal of time setting forth my public policy argument.
So anyway, at every appellate argument session I have ever attended, at least one of the attorneys representing the appellant will walk up to the lectern, spread out his or her notes, and say, “I don’t have anything to add to the papers, but just wanted to see if the Justices had any questions.” The Justices always shake their heads no, and then return to chambers to try and figure out a way to deny the appeal for the appellant’s counsel having wasted their time.