I previously blogged on an oral argument before Judge Richard Posner where I felt he had shown a surprising antagonism toward privacy and a civil liberties lawyer. Given my respect for Posner as a brilliant academic, I was surprised to read of his open dismissal of arguments that later prevailed in the court. Now, Posner is again the news with a heated exchange with a lawyer, Matthew Kairis, who he said was talking over his questions and refusing to direct questions with direct answers. The case is Univ. of Notre Dame v. Kathleen Sebelius. The oral argument tape below presents an interesting example of how lawyers respond to aggressive questioning from the bench in such arguments.

Posner was sitting on an appeal concerning a challenge to the health care law and Kairis was representing the University of Notre Dame. Notre Dame sued the U.S. Department of Health and Human Services over its contraception mandate. The law has an accommodation allowing the university to meet the requirement by contracting with a third-party provider, but that still requires action and approval from the religious institution.

During the 45 minutes, Posner grew increasingly irritated by what he viewed as disrespectful interruptions by Kairis and instructed him not to interrupted the court. He heated told Kairis “You answer my question!”

Posner was skeptical of the university’s argument that the health care law was forcing it into “complicity” with the government by forcing it to fill out a form to transfer responsibility for contraceptive services to a third-party provider. Posner said that the required action was “trivial” and asked Kairis to confirm what the university objected simply to sending a letter to the feds stating something along the lines of “we’re a religious organization, and so we’re just not going to pay.” Kairis clearly did not want to answer the question with a yes or a no and tried to explain. Posner grew increasingly irritated told him to “stop fencing” and warned him to stop: “Look, if you don’t cooperate with me, I’m not going to let you continue your argument.”

Posner then proceeded to publicly lash Kairis, asking “Would you stop babbling?” Posner added “When you’re asked a question … you’re not supposed to interrupt judges and, if they ask questions which can be answered yes or no, you answer yes or no. Don’t you understand that?”

When I work with law students, I often try to get them to give up prepared arguments or notes to better listen to judges. Interrupting judges, even domineering judges, is never a good option. Having said that, judges will sometimes try to force “yes or no” answers to complex questions. It can be a trap where the opinion later records some waiver or concession that was not intended by counsel. Many questions are framed in a way that it is simply not accurate to give a one word answer. It can be very frustrating for a lawyer. Frankly, I tend to have greater sympathy for lawyers in such cases, particularly when faced with highly nuanced positions of their clients. Judges often so little sensitivity toward the litigators while pummeling them from the bench.

What is interesting is the threat of Posner to stop the argument. That is a rather unilateral decision given the participation on the panel by Judge Joel Flaum and Judge David Hamilton.

You can hear the argument here.

I have listened to the argument and I do believe that Kairis was mistaken in talking over Posner. I also believe he could have been clearer in his position with the Court. He did appear irritate another member of the panel who sought to clarify with his position and instructed him that the court had a lot of questions. He then talked over that judge. Kairis ran into trouble again by giving his “sense” of his client’s position and again spoke over one of the judges.

However, I do not believe that he was ever “babbling.” He was struggling to make a difficult argument. However, that “babbling” comments came after Kairis continued to read a quote over the judge’s question, leading Posner to state “you must have argued cases before. You are not supposed to interrupt judges . . . Don’t you understand that.” He did not reflect that understanding in this argument and it was a very poor approach. Moreover, Posner asks one question that is appropriately framed as a “yes or no” question when he asked if Kairis’ clients were challenging the law as a whole. Almost reluctantly, Kairis says “no.” Even at the 32 minute mark, Kairis is still speaking over the judges’ questions. He is clearly having a tough time with Posner who is not letting him finish an answer. Posner appears to be trying to box him in but will not give him time to respond on many questions. It is a common complaint among litigators but you have to yield to the interruptions.

At one point, Posner asks (around 35 minutes) whether contraception is a “mortal sin or venial sin”, according to his client. Kairis says that he does not know and Posner says “Well, you should. It is a mortal sin if he person using the contraceptive knows that church forbids it.” Posner then asks why the university does not impose any sanction on students who use contraceptions. Kairis says the school has no interest in such a role, but Posner asks why. Posner notes that Notre Dame’s website contains a category of “what’s new” with news about contraceptive coverage. “No where is there any statement that Notre Dame is opposed to the use of contraceptives . . . I am just curious why Notre Dame [is arguing against this trivial obligation] but is not doing anything to alter people’s behavior.”

One of the other judges raises the most poignant question when he asks Kairis can point to any other case in history where the accommodation itself for religious freedom is itself viewed as the denial of free exercise. Kairis said that he could not think of any other such case. That line of questioning left substantial damage below the water line.

Kairis is an accomplished lawyer with Jones Day. As head of the litigation section for his office, he has considerable experience. He is also a graduate of the University of Notre Dame.

I should note that Posner himself finishes in a polite fashion at the end of the oral argument. It is an interesting oral argument to listen to for both the merits of the case (which are fascinating) as well as lawyering skills.