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.
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).
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.
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.
There was some guy at Saint Louis University named Charlie Swingle. Could it be the same school that Nick is referring to?
leej, Amen and “Brava” from the ghost of Charlie Swingle.
((*_*))
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.
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.
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.
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.
Does it really make a difference as to the content? Would a kinder gentler court be a bad thing? Scalia sounds like a jerk.
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.
Darren – well said
This is unfortunate…. Not all who litigate cases have photographic memories….. I was and am still lucky…..
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. 🙂
” 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?
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.
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.
Scalia comes across as a bully sometimes, whether he is one or not.
“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.
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