There was an interesting exchange on Tuesday in the arguments in Marvin Brandt Revocable Trust v. United States. The lawyer for a land-owning trust, Steven J. Lechner of Lakewood, Colorado, had started out reading from notes when he was interrupted by Justice Antonin Scalia who asked “Counsel, you are not reading this, are you?”
Counsel is expected to extemporize and Lechner reportedly stood there stunned in silence for an incredibly long period until Justice Stephen G. Breyer then jumped in, telling Lechner, “It’s all right.”
I am surprised that Chief Justice Roberts did not feel compelled to intervene for this hapless lawyer. Thankfully, Breyer had a human response. I am always a bit sensitive for lawyers slammed in this way before the Court. Justices as a whole do not have a great deal of litigation experience and often seem insensitive to the realities of lawyering, including the quite understandable level of nervousness that can take hold of the most seasoned lawyers in appearing before the High Court.
Scalia may want to change the opening of the Court to “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near, close their notes, and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.”
It was a brutal moment as well as an unnecessary one. Scalia did not have to shred this man in front of Court. However, it reaffirms something that I constantly hammer away at in class. I tell my first year students in torts that they cannot read from notes when called upon to present cases and answer questions. I explain on the first day that I see many smart and talented lawyers in court who come in and read from notes. It is a bad habit that alienates judges and jurors alike. It also prevents a lawyer from reading the reactions of the court or jurors when they are staring down at their notes.
This is a habit that I believe forms in the first year of law school, which is why I bar the use of notes in my class for presentations or answers. I ask the students to close their books and look at me. If they are reading from their computer, I will close the computer or admonish them to look at me. Once they get used to speaking in an unscripted fashion, they tend not to develop the habit to begin with. They are universally better when they let go of that crutch.
So, I understand Scalia’s point while strongly disagreeing with his method.
The rest of the argument reportedly proceeded without any further awkward moments. At issue are the rule governing cases where the government gives land away but then tries to get the land back.