Oral arguments show a lawyer’s conundrum

Sunday, November 21st, 2010
By: Jonathan MontagJ.D.

On September 8, 2010, during oral argument in Chicago in the case, Sabri Samirah v. Eric Holder, No. 08-1889, about which I recently wrote,  Judge Richard Posner, discussing the fact that the alien about whom the case dealt had no access to judicial review because he was outside the United States but would if he returned to the United States illegally, had the following interchange with the Department of Justice’s attorney, Paul F. Stone.On November 1, 2010, during oral argument in the case, United States v. State of Arizona, No. 10-16645, about Arizona’s immigration law, SB 1070, about which I have written, Senior Circuit Judge John T. Noonan stated the following to Deputy Solicitor General Edwin S. Kneedler:

J. Noonan: Now Mr. Kneeler, let’s not get away from this point. Because I’ve read your brief. I read the district court. I’ve heard your interchange with my two colleagues. And I don’t understand your argument. And you know we are dependent as a court on counsel being responsive, focusing, trying to help us, not go down just fall like soldiers in defense of some position that you have been told, been told. You keep saying that the problem that a state officer is told to do something. That’s not a matter of preemption. If the federal government wants to preempt its field, Congress can say so. We cut off communications. We don’t want to have this information sought. But it hasn’t done so. It may be very clear to you, it has not done so. I would think the proper position is to concede that this isn’t quite – that you don’t have an argument.Both cases bring up common questions relating to whether and when a lawyer should drop an argument or a case for that matter. I do not pretend to be able to give an easy answer to these complex questions. There are so many competing interests. I would like to present briefly the challenges to answering these questions.

First, as an individual standing before an appellant panel, a lawyer arguing for his side often is representing much more than just his client. He can be the person representing a point of view about a statute or a constitutional provision that could change the law for the entire country. Should the lawyer concede a very important point because the way it is being formulated during oral argument seems somewhat off the wall? In a different narrative context the position may be very sensible, and in fact meritorious. How many times has any of us had a position we believed unassailable, but upon reflection and looking at it from a different context, changed our minds? Probably not enough.

In both Samirah and the State of Arizona this responsibility to greater cause issue cuts both ways. Would Mr. Stone have been justified in telling Judge Posner he agrees; that the immigration system his agency enforces and he represents is ridiculous? That a legal position that even another circuit impliedly endorsed is preposterous? How would Mr. Kneeler be accepted back at the office in Washington, D.C., if, after all the reviewing and practice he underwent for oral argument, presumably with other high-ups in the government – televised, no less, he went to San Francisco and admitted his case was fatally week in certain parts? On the other hand, both men, Mr. Stone and Mr. Kneeler, represent the government which has a higher duty than a private-bar attorney to seek justice – they work for the Department of Justice after all.

Second, you would be amazed how hard it can be to figure out if your case is meritorious or not. You would be surprised how often litigators who are convinced their position is unassailable lose and how many times litigators who believe their positions are weak win. I can think of specific cases where I was 100 percent convinced I would win at the Court of Appeals and lost and where I was relatively certain I would lose and won.

This should not be construed as an argument for taking any case to any length and making any argument. I probably spend more time each day telling people they have no case than anything else I do. I have informed many people that I would not take their case to the District Court or the Court of Appeals because there are no good arguments or the court lacks jurisdiction. I have blogged several times about lawyers who do not do this. They probably earn infinitely more money than I do as a result of their willingness to file crap. Sometimes it is so extreme that they cross the line from zealous advocacy to hucksterism, as the City of San Francisco recently alleged against some lawyers, as I recently wrote about. Attorneys are not allowed to file frivolous lawsuits, but they are allowed to challenge the law and work to advance the law. Thurgood Marshall had solid authority against him when he challenged “separate but equal,” but no one now would say he was being dishonest in bringing Brown v. Board of Education to the federal courts.

Finally, our legal system is an adversary system. The parties defend their positions and the judges and juries decide. Were Johnnie Cochran and Barry Scheck wrong in representing their client zealously in the O.J. trial? Other countries have different systems. Under the civil justice system, judges are not as powerful as they are in this country. They work as chief investigators looking to find the truth, not as referees between the parties who put on their cases. Perhaps that is a better system, but we seem to like ours more.

Does the adversary system change when you get to the court of appeals? From the judges perspective, I am sure they would like to cut through all the legal baloney and the smoke and mirrors and have the parties help them get to the correct outcome. However, just as Michelangelo pretended that his statues were pre-existent in the marble he sculpted them out of, so too, it is pretense to believe that the decisions in a case, what the law is, are discoverable through a judge’s analytical tools with which he or she uses to hew away the rough walls that imprison the wonderful apparation. Mostly, a given case can go several ways. Making the decision is the judge’s job. The parties are there to present their positions – honestly, of course, but also with the best interest of their clients in mind. It is for the judge to make the decision, not for the lawyers to concede it for them. At least that is the argument. Posted November 21, 2010.


J. Posner: That’s utterly preposterous. Everything you say makes the government position more ridiculous.

Mr. Stone: That is the nature of …

J. Posner: No, That’s not the nature of, that’s not the nature of, it can’t be that. The law can’t be that ridiculous. Now of course you don’t think it’s ridiculous. You think it’s fine because you don’t say anything in your brief to suggest there’s a problem here. You don’t acknowledge there is a problem. As far as you are concerned this is fine. The setup is fine. Isn’t that your belief?

Mr. Stone: The setup is the way it is.

J. Posner: It’s fine in your opinion. You don’t want to change it.

Mr. Stone: It’s not my place to change things.

Posner: Do you have views? Do you have opinions? Would you make a recommendation to the Justice Department that something be done? You just don’t think about these things. You don’t think about whether you are defending the indefensible.


No Responses to “Oral arguments show a lawyer’s conundrum”

Comments are closed.