A “ZEALOUS” ORAL ADVOCATE?

I have a problem. 

In past columns, I’ve adorned these pages with advice about what I call “aggressive reasonableness.”  This means being bold when writing a brief, strongly asserting the justice of your client’s cause.  But it includes being reasonable, both in tone and substance.  Leave out the personal attacks on opposing counsel.  Omit the over-the-top adjectives like “outrageous” and “ridiculous” and “obvious.”  And don’t make arguments that a reasonable person would find very weak, even if not frivolous.  In fact, concede something once in a while—so long as it doesn’t cost you your case.  This will enhance your credibility, making the judge more receptive to your other arguments.

I’ve had trouble applying the “aggressive” part of this approach to oral argument.  Maybe it’s just me, or perhaps it’s the nature of the beast.

While you’re writing your brief, you get no feedback from the Justices.  You can’t talk to them, and you have to guess what facts and arguments might hit home.

But when you get to oral argument, you often get big feedback pretty quickly.  Sometimes via their questions, and occasionally through declarative statements, the Justices tell counsel how they’re planning to decide the case.  And sometimes the Presiding Justice might say to Appellant’s counsel, as soon as she gets up to argue: “Please sit down, counsel.  We have some questions for Respondent’s counsel.”  When I’m representing the Appellant and these delightful words are spoken to me, I graciously surrender the podium to my opponent—because I know I’ve won the case.

But occasionally I’m on the dark side of this dictate.  I’m the one who’s about to get hammered with hostile questions.  And they won’t be questions, not really.  They will be sub silentio announcements.  As in, “We’ve already written the opinion, it’s against you—for these reasons.  This is your one short chance to try to talk us out of it.  A snowball in hell would have a better chance, but go for it if you like.”

Most attorneys go for it—rather diffidently and defensively, by repeating the arguments in their briefs.  But the Justices have already read the briefs, and found them not persuasive enough to do the job.  So repeating those arguments on your feet has no chance of doing any better.  But at least they try—or appear to try.  If the client is watching, the attorney had to do something to show that he’s earning his fees.

That’s not good enough for me.  I’m simply not built to go through the motions and accept the inevitable loss.  I fight.  They ask their “questions,” and I go straight to the guts of the justice of my cause—working that into each of my answers.  They push back, and I push back on them.  It seems hopeless, but you never know.  It’s likely that one Justice (probably the one fighting with me the most) drafted the opinion and is the one most committed to it.  But it’s also possible that one of the other Justices is more willing to challenge it at their post-argument conference—if I give her the right ammunition.  Possible, though unlikely.

Sometimes, the Justices seem to find this annoying.  Their faces seem to say: “Why does this guy keep bothering us, telling us we’re wrong when we know we’re right?  We’ve already decided the case, and we have other cases waiting on the oral argument calendar today.  He should shut up and sit down, so we can move on.”

I might be paying a price for this.  I appear in appellate courts pretty regularly.  While I hope that Justices understand and accept a lawyer’s duty to fight for his client, I don’t want them to see my name on a brief and think, “That jerk?  No breaks for him!”  Or for my new client, who had nothing to do with my earlier aggressions. 

But that’s the chance I’ve chosen to take—for two reasons.

First, as I said, I’m a fighter.  I voluntarily went into a line of work—appellate practice—where it’s usually all or nothing.  My cases hardly ever settle.  The Respondent won at trial and thinks he’ll win on appeal, so why give up anything?  And after years of litigating the case, the parties are often pretty angry at each other.  So I win, or I lose—nothing in between.  As the eminent philosopher Hyman Roth put it, “This is the business we’ve chosen . . . .”  The Godfather, Part II (his “business” was crime and murder).  Why did I choose a business where I regularly submit myself to the highs and lows of all-or-nothing victory or defeat?  One might ask the same question to tennis pros and NBA stars.  But those guys are young, when the competitive juices are still flowing fast.  My youth is gone—but maybe I’m not quite grown up yet. 

The second reason is ethical.  I have duty to represent my client “zealously.”  Rule 1.3 of the ABA’s Model Rules of Professional Conduct says: “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”  To me, “zeal in advocacy” means you don’t give up till the judge rules against you.  

And that happens to be the legal limit on zeal.  In Hawk v. Superior Court (1974) 42 Cal. App. 3d 108, 126, after the trial court sustained objections to a lawyer’s questions to a witness, the lawyer continued to ask the same questions.  The appellate court affirmed the contempt citation:

The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law.  It is the imperative duty of an attorney to respectfully yield to the rulings of the court, whether right or wrong.  [Internal citations omitted.]

So there’s a pretty clear line that reconciles two potentially conflicting ethical duties.  Before the judge rules, you have an ethical duty to fight like hell.  After he rules, you have an ethical duty to shut up and live with it.

In my case, it seems that I come close to the line, without crossing it.  During my woe-begotten oral argument, the Justices might have pretty clearly indicated what they planned to rule—but they haven’t officially ruled yet.  The signed opinion has not yet been delivered to counsel.  Until that happens, my ethical duty to fight zealously for my client continues.  I stop when my time runs out, or the Presiding Justice tells me they’d had enough of me. 

That said, I admit that once in a while, in the heat of the moment, I’ve said something I later regretted.  Once, when a Justice ignored my contention that a reported case expressly rejected his approach, I proposed that he put his approach in his opinion so I could take it to the Supreme Court.  Ouch!  Maybe one argument too far . . . .

And I cannot claim great success from my last-minute, on the spot, Hail Mary efforts to save a losing cause.  It’s really tough to change three (or seven) smart, experienced minds that are made up.

But one of these days . . . .