Academic journal article Journal of Appellate Practice and Process

The Best Oral Argument I (N)ever Made

Academic journal article Journal of Appellate Practice and Process

The Best Oral Argument I (N)ever Made

Article excerpt

Back in my days as a litigator, I often faced the same pre-argument dilemma: Do I invite my family or not? Plainly I would want them all there at the conclusion of a flawless performance, but what if things didn't go so well? What if I was trapped by a question from the Court, or shown up by the adversary? Embarrassing enough in a roomful of strangers. But why heighten the risk, and pressure, by bringing family?

Baldt v. Tabet was an exception. Though we had lost on summary judgment, the trial had gone well before United States District Judge Charles Tenney, (1) and I felt sufficiently confident about our client's prospects on appeal to spread the word as the date for oral argument in the Second Circuit neared. The client, my husband, my in-laws, and countless others accompanied me on that sunny and beautiful June 26, 1975, as I made my way down to Foley Square in lower Manhattan.

I cannot honestly say today--a full three decades later--that I was surprised to find retired United States Supreme Court Justice Tom Clark presiding. Surely I must have known in advance that he would be on my panel. But most definitely I did not know that he would be so lively, so engaging, so entertaining. As he tore into my adversary, dismembering his arguments, I had fifteen minutes of exquisite pleasure/pain--pleasure witnessing the skillful demolition of my adversary's case, pain at the prospect that the panel was merely warming up for the next round: me. Definitely a mistake to have issued all those invitations.

As my bowed and bloodied adversary took his seat, I gathered up my papers, and my courage, and moved to the lectern. …

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