Oyez! Oyez!: Justice Scalia Confronts Lawyer Over Reading From Notes

220px-Antonin_Scalia,_SCOTUS_photo_portraitThere 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.

41 thoughts on “Oyez! Oyez!: Justice Scalia Confronts Lawyer Over Reading From Notes

  1. “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.”

    He might change it to something less ridiculously pompous.
    Like “OK. Who’s next?”
    Longer version. “Just in case any of you are not aware of the fact, this is a Court. OK. Who’s next?”

    You might get away with “Oyez!” if the judge is dressed as UK High Court judges were:
    Before autumn 2008, when dealing with first-instance criminal business in the winter, a High Court judge of the Queen’s Bench Division wore a scarlet robe with fur facings, a black scarf and girdle (waistband) and a scarlet casting-hood or tippet. When dealing with criminal business in the summer, the judge wore a similar scarlet robe, but with silk rather than fur facings. In both cases, the judge wore a wing collar, bands, and a short wig. Since autumn 2008, only the winter style remains.
    Don’t even ask about UK Supreme Court.

  2. It is best to teach new students proper habits from the beginning I fully agree. In stressful situations most people will revert back to their training. If the training is bad, the response will often be lacking.

  3. How can a professor who “constantly hammer[s] away at in class”, “tell[ing] my FIRST YEAR students in torts that they cannot read from notes If they are reading from their computer, I will close the computer or admonish them to look at me.” complain that a Supreme Court Justice would admonish a lawyer standing in what should be an Honorable Court for committing a novice error?

    I say Hoorah for Scalia for having the temerity to do so and would use this example with students in class….while you admonish and close the computers.

  4. ” If they are reading from their computer, I will close the computer or admonish them to look at me.”

    Law professors and Scalia can look forward to great frustration when Google glass and similar products come online and reach the masses.

    I am pretty sure we face a future where no one remembers anything so long as they can count on wearing their computer so they can look it up.

    BTW, does anyone actually know how to spell or multiply anymore – they don’t still teach that in the schools… do they?

  5. Mike:

    One issue I find annoying is watching commercials where it is increasingly prevalent that no matter what the context or where the actor is they are holding some smart phone or tablet pc and pushing some onscreen button with a completely extended finger to provide them with everythign possible. Typing is too much to ask these days. Even the mouse pointer is passe.

    To me this represents what you are talking about the google glass issue; that is the dumbing down, instant gratification and laziness factor. The two most ludicrous commercials with regard to this was for an online tax preparer where it implied a person could file their taxes simply by pressing single buttons on a screen. It asked questions such as Are you married, press yes or no, etc, and you are done. The other was a man sitting away from his home with a hand held device and pushes a button on the screen and his entire house goes into hibernate mode with lights, tv, and even the kitchen sink faucet turning off.

    It seems like many device makers, cell phone companies, and the followings of every large retailer or service under the sun is trying to socially engineer people to be tethered like an umbilical cord to these smartphones to provide them with everything they need, the most important one of all is To be Entertained.

    There was a time in my life where I worked on the most cutting age software and technology then in its pre-production state. And despite this I am simply bewildered at how people have abandoned themselves to these devices, literally twiddling their fingers wasting time and life itself on their smart phones. And they are getting younger and younger.

    Then there was another time in my life when I would pull over a car for speeding or something and teenagers inside would be looking out the windows or at my patrol car whatever. Then around 2011 it all changed. Then it was typical where I would pull over a car and there were four teens inside, all but the driver would be going to town twiddling on their smart phones despite it being a nice day out and it was a scenic area in the county. But what could one expect when they are introduced to ignoring the real world when you have some monster SUV drive by and they children are babysat with a TV & DVD of some movie to watch.

    Maybe I am just becoming a relic, I don’t know anymore. :)

  6. This is unfortunate…. Not all who litigate cases have photographic memories….. I was and am still lucky…..

  7. Scalia is a scourge on the Supreme Court. For someone who quotes facts that are made up and untrue consistently, he does not have the “standing” to dress down an attorney for reading from his notes. While I agree with Prof. Turley that law students should get into the habit of talking on their feet without notes, we are still humans.

  8. Does it really make a difference as to the content? Would a kinder gentler court be a bad thing? Scalia sounds like a jerk.

  9. Not the largest of reasons, but another one nonetheless to end lifetime appointments to anything. The ones we elect are not qualified to lead the nation in 2014 let alone judges who dispense “justice” to a nation that only exists in their minds, and all of which were born and raised long before data networks showed how to get to the real truth.

    Scalia talks to hear himself speak.

  10. The BEST professor and class I ever had was a speech class in College. The professor was VERY tough. Reading from notes was a cardinal sin. His remedy makes Scalia look like Breyer. Professor Charlie Swingle WOULD THROW SOMETHING @ YOU. And he had a strong and accurate arm. It was usually a rubber or tennis ball and he missed high, not low. Charlie was a headhunter. Outside of class Charlie[that’s what he had us call him] was a great guy. We played poker w/ him[he was damn good]. I never knew it @ the time, but this class would be transformational for me. I’m an introvert and public speaking was a nightmare for me. It would turn out, public speaking in court and giving presentations would be something very important in my career. Not only did Charlie help me get over this weakness, he made it a strength. We were constantly giving speeches, all types of speeches. Telling your students to never read in court is important. But, there should be a class where this is practiced. Charlie is long dead, but someone tough, demanding, and positive is important. When you nailed speech for Charlie he would stand, applaud, and say “Bravo or Brava.”

    Scalia is red meat here. He is an arrogant a$$hole @ times. But, I bet he’s a lot like Charlie. One thing I’ll assure you, this attorney won’t make this mistake again. Tough love is tough, but so very effective.

  11. Darren, Great points about teaching proper habits. I taught 7-12 history, so I was too late in the game for that. I coached Little league baseball to Legion ball. Little League was key for coaching, by the time I got the kids in Legion ball[high school] the bad habits were already ingrained. It’s exponentially more difficult to reteach than teach. Someone here should be calling out this attorneys teachers and professors. But, it’s much more fun to ridicule Scalia.

  12. I was Pro Se in a medical malpractice case. I was astoundingly nervous when I had to make my opening. I started out reading from my notes, my hands shaking the papers, probably noticeably. When I looked up at the jurors I could see they were uninterested. I felt it was because I was not addressing them directly. I decided to ignore my notes and just talk to them. Later the defendant’s attorney told me it was one of the best openings he had heard. (I said you’re just being nice. He responded “No. It’s true). What a difference it makes once you are looking at the judge/jury and appearingly speaking from the heart and belief.

  13. There was some guy at Saint Louis University named Charlie Swingle. Could it be the same school that Nick is referring to?

  14. Well, we are on the Supreme Court. It is a sixty foot schooner. Those who are privileged to get to speak there must know the ropes. The boat is heeled over in a good wind. The First Mate has reached the Wheel and takes over. The crew is looking at him as he begins giving orders. He goes into his trouser pocket and comes out with a scrap of paper with notes. He begins reading. The ship capsizes. All men are lost at sea. Went on board dumb and came off board dumb too.

  15. I agree with Scalia for barking at the guy. It is not like yelling Fire in a crowded theatre but it is like getting up at the mike and reading a prayer at a cattle auction. We speak, on our feet. No sitting down at counsel table. We can, and should, hold up an exhibit once in a great while. This is as bad as those dog alert cases which made it all the way to the Supreme Court and no lawyer had the sense to raise the Hearsay of The Dog Objection, from day one in trial through the Fifth Circuit Court Appeals, during briefs, and now in oral argument.
    Then Scalia, despite his so called affinity for Originalism, fails to pick up on the glaring mistake for failure to raise the hearsay objection. But, that was another case.

    Here the nitwit from Colorado will go down in history. Forty years from now at his funeral the Pastor will get up and start to read from notes and then hastily throw them away.

    Can you imagine Scalia’s Priest coming out to the pulpit last Sunday and reading Hail Mary Full of Grace from some notes? That Priest would get interrupted too. As she should. Whoops they don’t have women Priests yet do they? Scalia: chime in on that one.

    Scalia reads this blog.

  16. From the blog of legal times
    Supreme Court “Rule 28 states bluntly, ‘Oral argument read from a prepared text is not favored.’ And the court clerk’s helpful guide to oral argument warns advocates on page 9, ‘Under no circumstances should you read your argument from a prepared script.’” (hyperlinks removed).

  17. Scalia is a bully and a provocateur pimp of the SCOTUS. He has a habit of intimidation while going around outside the court to give his opinions to the conservative gatherings of the cases being discussed in the court.

    Prof: JT: Although I agree with you about speaking without the notes, but that view contradicts the fast changing times to which we are forced to adapt to.

    The only difference in the SCOTUS is that they do not wear ugly white wigs anymore but carry on wearing “burkas” with their faces showing.

    It is a good idea to speak without notes. In order to do that, the first year of law school should not be the starting point. The kids who want to be lawyers should involve in debate teams from their middle school onwards and some magnet schools also offer mock trials in real courts at the same time. Both help them speak and answer questions without the notes.

    My son who is a freshman at college did both and very well I must add. He won all his cases at his mock trials and won all types of debating trophies, went to the nationals from his middle school onwards but has decided to be an astrophysicist by doing Phd in Physics. I wish him all the luck.

  18. Those who can: do. Those who teach should teach the law students from day one to not “pull the Lechner”. No, we are not talking Hannibal Lechner. But the reading from Notes at the Supreme Ct guy named Lechner. He will go down in history. It is like pulling the lever. When you pull the Lechner the trap door under your feet at the podium drops and you go into the cellar of the Supreme Court Building. Then you are taken out on a rail. Teacher Turley and others must teach this lesson tomorrow morning.

  19. (Scalia) “Counsel, you are not reading this, are you?”

    (JT) “It was a brutal moment as well as an unnecessary one. Scalia did not have to shred this man in front of Court.”


    (JT) “So, I understand Scalia’s point while strongly disagreeing with his method.”

    I’m curious how, first, Scalia’s comment can be taken as a brutal shredding of the man. It’s not like he dressed him down, he just asked if he planned to read his monologue. The court’s customs are pretty set against just coming in and reading notes.

    Then I’m curious how, second, someone who understands Scalia’s point but disagrees with Scalia’s method would have gone about remedying the situation?

    Totally agree with JT’s comments about teaching his students to do away with notes.

  20. I was quite nervous in my very first appellate argument before none other than the esteemed (around here anyway) U.S. Fourth Circuit Court of Appeals. I had re-read every case in this mundane bankruptcy action and knew the facts. I even knew which judges had written which opinions and was prepared to look uber good by mentioning that fact in passing. As we got into it, I recall freezing on the facts of one of the cases written by the most active questioner. When I finally got busted by the judge about the facts,I said, “Well, judge, you wrote the opinion so I didn’t want to rehash all the facts you already knew quite well.” We moved on.

    The Fourth Circuit has the habit of coming down off the bench after each oral argument to shake hands with the lawyers and to thank them for their efforts. A gracious thing to do, in my opinion. As my chief antagonist extended his hand he said almost imperceptibly that he couldn’t recall the facts of the case where I froze but didn’t want to say so. He also said, “I suspect there were others in the courtroom who couldn’t remember it too.” I humbly replied, “You’re shaking hands with one of them.”

    We won the appeal.

  21. mespo, Kudos on being forthright and great anecdote. One of the first times I had to testify it was in front of a curmudgeon judge. I was sworn in and then went to take the witness chair. I fell and slammed my nose. It was bleeding and my eyes were watering. There were some Kleenex handy. The attorney who called me asked me if I needed a minute. The judge barked, “Proceed counselor.” It wasn’t personal as far as I know, it was my first time in front of this judge. Just a real prick. Judges run the gamut. I had a circuit court judge marry us on short notice. A great guy.

  22. Itchinbay, I’m sure Charlie has been dead for decades, and I went to school in Pa. Everyone had to take speech and Charlie was the only speech teacher. If you wanted to graduate you had to go through Charlie.

  23. All law students and all lawyers are not necessarily meant for court. Many lawyers never make it there (in several senses of the words “make it”). Scalia could have kept his astonishment at the lack of skill/style/awareness to himself, but as with the other example, we are all who we are (and that is him). As with everything, there is a lesson for all of us in the story.

  24. If I was a human again and was teaching clinical law students again, I would discuss this blog article and our comments. Not all people who go to law school end up being “in court lawyers”. Few ever get to courts of appeals. But being able to stand up and discuss a case and all the law is important. One crutch which I use is calculated. If it is an evidence issue, whether at trial or on appeal, I carry my small pocket book called Objections At Trial. It is authored by Ron Carlson and two other guys. One is Judge Myron Bright and the third is Immwrinkelreid. I did use my crutch in front of the 8th Circuit Court of Appeals on time and guess who sat on the three judge panel. Yeah, I was stretching it. But this is my favorite law book. There is a 2013 version which came out last March. But, that was back in my law career and I am a dog now.

  25. I recommend two “props” for oral argument on a constitutional law case. A small pocket size copy of the Constitution and the pocket size three ring binder book Objections At Trial, mentioned above. If you discuss the 14th Amendment for example. Read the relevant provision from your little constitution book and then stick it back in your jacket pocket where it belongs. I had one that I bought in law school and carried it to court of appeal arguments with me and kept it on hand. Forty plus years or so. Of course, that was back before I was a dog.

  26. There is absolutely nothing wrong with a lawyer reading from notes. The BEST lawyers do it all of the time. Scalia is simply a moronic bully. If he were to have to face off as a lawyer against any good lawyer, he’d be shredded to pieces, and would be laughed out of court. He’s lucky that he was politically connected so he could be appointed judge. He’s a no-talent politician who comes up with nonsensical legal theories and canards that “support” his position on every case: i.e., pro-big business, pro-big government, and anti-regular citizen. I wish one of the other justices would just speak up and tell Scalia to shut his hap if he can’t say anything intelligent, and then wrapping that statement with a final closer: “Besides, it would be nice not to have to hear you voice for the remaining hour.”

  27. Great story, mespo. I love oral argument, but was terrified the first time I faced an appellate panel. I quickly learned that having a prepared oral argument is not the same as being prepared for oral argument.

  28. Oral argument can begin in the cafeteria of the courthouse where the respective court of appeals sits. Or in the law library in that building. A crafty lawyer yaks up the court legal clerks and other clerks and the judges. The pocket size copy of the U.S. Constitution is visible in the jacket pocket and can open a discussion. Same with Objections At Trial. The story behind the ten, twenty, thirty year history of the pocket Constitution which one got in law school can travel a long way. This is not the day of trial or argument but on a regular basis. They did teach you this in law school did they not?

  29. Ralph says: “There is absolutely nothing wrong with a lawyer reading from notes. The BEST lawyers do it all of the time. ”

    That would be very, very not correct. I found a quote from a 1980’s book on Supreme Court etiquette by Rehnquist that said “this behavior is so egregious that it is rarely seen”.

    So your claim that the “BEST lawyers do it all the time” seems confused and unfounded at best.

    And as mahtso points out upthread, the Court’s own oral argument guide warns that:

    “Under no circumstances should you read your argument from a prepared script.’”

    I’d say that’s pretty clearly stated.

    But if you have some evidence that the best lawyers do “do it all the time”, I’m all ears.

  30. “But if you have some evidence that the best lawyers do “do it all the time”, I’m all ears.”

    With some of the lawyers I have seen, it is comforting to have proof they can read.

  31. “With some of the lawyers I have seen, it is comforting to have proof they can read.”

    Now That’s Funny, Right There. I Don’t Care Who Y’Are!

  32. Notes should be allowed when presenting exact quotes of more than a few words and perhaps to verify case cites. A general outline ought to be allowed, but only because that should refresh the memory, not substitute for it, , particularly when a long presentation allows for losing one’s place. Otherwise, practice, practice practice!

  33. I define the best lawyers as those that have a winning streak. I’ve observed those, and they use notes ALL OF THE TIME. In fact, during one trial in which I had the opportunity to observe one of the best criminal attorneys in the US in action, he not only USED notes during the trial, but he specifically told the jury that he uses notes and that a criminal trial is not like Perry Mason, Matlock, etc. where the attorneys just talk off the top of their heads throughout the case. Okay?

    And, oh yes, he WON. So STFU when you don’t know what you’re talking about.

  34. This evening on January 25th I am watching CSPAN and Justice Breyer is doing a lengthy interview. In response to a question he went into his suit coat pocket, pulled out his paper handbook size copy of The Constitution and responded to a questions. The small pocket version is not a prop as I stated in a comment above but is a great way to employ some notes in an oral argument.

    Also, a trial is way different than an oral argument on a motion or an appeal.
    In trial you are with jurors. Notes are a way of doing business and might be a method of making one’s case.
    Oral argument before an appeals court is different.

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