Law Dopers, your Advocacy Adventures

Miscellaneous and Personal Stuff I Must Share
1

A former US Solicitor General once said that there are three kinds of oral submissions

  1. Coherent, logical, articulate and persuasive; the one your prepared

  2. Incoherent, disjointed, interrupted, mumbled and unpersuasive; the one you actually give

  3. And the devastating argument; what you think of going to bed that night.

So guys give us examples of yours. Be they oral submissions, witness handling or even applications in Chambers.
My offering.

Conducting Exam in Chief, ask the witness a question, she answers, look down at my notes and look up and see…witness chatting away on her mobile phone. Chaos ensues as the judge chastises her for her acts and me for not controlling my client. We get back, and I have forgotten what I was to ask her. The rest of the exam went badly, and opposing counsel tore her to shread in cross. I managed to salvage some respect in the rexam but our case was hurt. Still gets me that.

Second; before a High Court judge in a Company matter. Speaking nice and confidently when suddenly she asks

“Mr Ak84, what about Rule 27.3”?

Now I have no idea what i) the hell rule 27.3 is and ii) its relevance to the matter at hand". So I mutter “Err My lady, I will get to that later in my submission” hopeing that either she forgets or I recall, but she persists saying that she wants to be satisfied on that point.

I have no choice but to interrupt the flow and start shuffling through my papers, err nothing there, trusty old Company Law book, all the while she is repeating Rule 27.3 again and again. Finally it dawns, there is no rule 27.3, there is a rule 23.7 which is peripheral to the case and worse I have not anticipated the matter.

Me: “My lady will find that the provisions of Rule 23.7 are not really relevant here” I say in my haughtiest most Barrister-like tone of voice.

Her Ladyship: “Actually I find that Rule 23.7 as interpreted by their Lordships of the Supreme Court in X v Y stands as a bar to the relief you are praying for, Counsel. What is your view”.

Me: err ahhh, ummmmm well you see…

I did win the first case, as well as the second…on appeal.

Your move Counsel.

2

I used to periodically travel to another state where I would argue 6 or so appeals in a day. I’d prepare for most of the beforehand, but would prep at least a couple of the p.m. ones over lunch. Before arguments the parties would exchange submissions, and one morning opposing counsel handed me a pleading on a case scheduled for the afternoon. Or so I thought. It was the next one up and I hadn’t looked at it yet. So I start furiously paging through the several hundred page record during my opponent’s 15 minute argument to figure out what to say. As luck would have it, right off the bat the Plaintiff argued that a certain piece of evidence established his case. The magistrate said, “Wait a minute, I’d like to get Defendant’s opinion on that before you complete your argument.” I flipped to the exhibit in question, looked at it for the first time, and mumbled something pretty generic basically restating the standard of review. Whatever I said, it satisfied the mag sufficiently to give me another 5-10 minutes to prep. Not my best day.

Another time I was traveling to the same court. I was planning on leaving from my office, so I wore my white Converse hightops, and planned on tossing into my bag the dress shoes I had at the office. Prepped my cases the night before and went to bed around 1 a.m., whereupon I literally sat up in bed, realizing I had forgotten my dress shoes. First argument was 9 a.m., before any stores would be open. I showed up early and went to chambers, to tell the mag I meant no disrespect. He magnanimously (and kiddingly) offered me a black marker…

The afternoon’s cases were delayed due to some probable cause hearings. So I’m sitting on a bench in the hallway, as they parade in the detainees One massive shackled and orange jumpsuit clad guy looks at me and says, **“I wish I was STYLING like my MAN over there, wearing his pins and jumpers. You be BUMPING, my man!”

Made me so proud!

3

Did you win? Appeals tend to see most of the stuff like this.

4

My biggest advocacy adventure happened in front of the Supreme Court of Texas, on an issue that would make most people snooze, but was pretty important to the State. Background:

I’m an assistant prosecutor in a small county, only two lawyers in our office. My boss, the elected official, hates doing appellate work, so I end up handling all the appeals. Well, one fine day this case comes up, and it’s a whopper. The issue: the legislature passed a law saying that, if a convicted defendant doesn’t pay their court costs, attorney fees, restitution and such, the court may issue an order drafting some money from that defendant’s Inmate Trust Account (ITA) to cover those costs and make recurring drafts until they’re paid. Awesome rule for the State; finally, unpaid court costs would finally get paid. The ITA is a fund that the prison keeps for each inmate to make discretionary purchases from the prison commissary, such as art supplies, higher-quality soap and deodorant, candy, and whatnot; the inmates’ families can contribute to the ITA.

So, we issued a draft order against one of our convicted defendants. This didn’t sit well with him, so he appealed the order. As it happened at the time, there were conflicting precedents on whether the orders were kosher or not.

The Appeals Court in Amarillo sided with us, but he kicked it up another level. Rather than appealing to the Court of Criminal Appeals, as I felt he should have (it’s the highest court in Texas for criminal matters), he appealed to the Supreme Court. And they decided to hear the case. The State Prosecuting Attorney usually represents the State in appeals to the CCA, but not in front of the Supreme Court. So, now I’m not only responsible faced with briefing and arguing in a civil court, I’m bearing the responsibility of possibly blowing millions of dollars for the State in lost court costs that can’t be collected if the statute is axed.

Less than a week before oral argument, the Court of Criminal Appeals, which had heard argument on another draft order case months earlier, issued an opinion basically punting the issue to the Supreme Court. Great, so now I can’t argue that it should be a criminal issue and they should just dismiss the appeal for want of jurisdiction. I drove six hours to Austin the night before and have oral argument the next morning. Fun times. They fired the first question at me before I could even get a, “May it please the Court” out. But, I made it through, arguing that the draft was not a civil garnishment and shouldn’t be treated as one, and even if it was, the defendant had adequate notice when he was served with a copy of the withdrawal order. Made it through somehow, and right after I’m approached by some other lawyers from the Texas Department of Criminal Justice saying I did well. That’s a relief, since I’d asked them months previously if they’d handle the appeal (prisons are their business), but they never returned my calls.

The decision came down on our side, so at least I didn’t cost the State $25 million a year in lost revenue.

Final note: the total amount drafted from the inmate’s account, for which I had to travel to Austin, was $4.

5

Rather than spend a couple of days travelling, I argued before the Court of Appeal by video. There were a couple of problems. First, the video only showed one of the three judges. Second, the video went blank in the middle of my arguments.

6

I saw a prisoner in the box pull a tampon out of herself and nail the judge in the face with it.