Salad, a Glass of Red Wine, and a Discussion about How to Effectively Answer Questions in Appellate Argument
Lavine, Douglas S., Journal of Appellate Practice and Process
I have always had a special place in my heart for Elrod Pennington, Jr. His father and I grew up together, went to college together, attended law school together, worked together as prosecutors, and were nominated to be trial judges the same day. I remember the day young Rod was born, thirty years ago. His father was delirious with joy and that joy never diminished. And how could I ever forget the day my old friend died, a month after watching me swear in his son? A widower, he had willed himself alive, through years of painful cancer treatments, to see that day. But he had made it, beaming during the entire ceremony, and then a month later, his task completed, he let go.
I am a bachelor, but Rod is like the child I never had. I have watched with interest as his legal career has unfolded. He has his father's smarts, charm, way with words, keen analytical sense, and a certain not-so-subtle arrogance. Like his father, Rod always thinks he is the smartest person in the room. But then, he often is. He landed a job as a prosecutor in the same office his father and I worked in so many years ago. His dad would have been so proud! Rod quickly rose through the ranks there and was recently asked to join the appellate section.
As I wait for him to join me at our regular Thursday-night dinner, I am looking forward to hearing about his first excursion into oral advocacy because I made a silent promise to myself--and to his father--that I would watch over Rod as he made his way in his career. I have done that, and sharing a profession has kept Rod and me close. He always calls me "Judge, " half in jest, given the warmth of our relationship, but he is not afraid to disagree with me. He can take as well as he can give and I treasure our spirited conversations. Besides that, he has an unusual way....
Oops, here he comes now. I'll pick this up later if I have the time.
--Rod! Over here! Sit down. How about a glass of wine? Beautiful night to eat outside on the patio. Dinner's on me.
--No, Judge. You promised last time that this one was mine! But I have to leave in about an hour to pick up a friend at the airport. Sorry.
--Fine. Listen, you can pay next time. Besides, I don't remember any promise. [Waiter, can we have some menus, please?] You look like the cat who swallowed the canary. What's going on?
--You know I had my first argument in the appeals court this morning. Hard case, but I think I knocked it out of the park.., if I do say so myself.
--Your modesty is ... striking. But give me the details.
--Well, you remember that this defendant's a bad guy: convicted of robbery in the first degree. But Charlie Neal took the appeal, and Charlie's one effective appellate lawyer. He's arguing that the case should be reversed for prosecutorial misconduct because the prosecutor made some arguments that were way too aggressive when he was summing up at trial. Charlie's take is that the prosecutor injected his personal opinions into the case and suggested the guy should be punished just because he decided to go to trial.
--How did the argument go?
--Really well. I think. I mean, I'm new at this, but I managed to dodge every question the judges threw at me about the negative impact of the prosecutor's comments. Sure, the prosecutor went too far, but I didn't concede anything ... even though the judges pushed pretty hard.
--So you bobbed a little, weaved a little, and emerged unscathed?
--Right! That's just how I see it, Judge. Not even a nick.
--Hmm. And you think you satisfied the judges' concerns about the case?
--Maybe not entirely, but I sure didn't concede anything. And I hammered the theme that it was a violent robbery and a strong case and the prosecutor's remarks couldn't have done any harm, anyway.
--Who was the prosecutor?
--He's had some convictions reversed for prosecutorial misconduct, hasn't he? …