I chose to celebrate the unseasonably warm weather last week by participating in the VTLA’s February Freeze Telephone Seminar. The other panelists were Steve Emmert and Kevin Martingayle. Roger Creager, Mic McConnell, and Mark Lindensmith shared moderating duties.
If you click on any of those links, the first thing you’ll notice is that everyone on that list is far more accomplished than I am. Also, in almost all cases, better looking. I’m a little baffled that they let me talk at all. But let me talk they (inexplicably) did, and I had a blast.
The seminar covered two major topics: 10 Ways to Kill an Appeal, and Better Oral Argument Made Easy. We’ll save those for another day. (Cordell calls this “repurposing content”).
Instead, I want to talk about a question that came up during the audience participation portion of the seminar. It went something like this:
What is the correct way to cite a case at oral argument when you haven’t discussed it in your brief?
Emmert fielded the question: you don’t cite that case. Because we’re gentlemen of Harvard.*
Using cases at oral argument that you haven’t discussed on brief is bad form. It will likely get you a glare from the justices, if not a full-blown benchslap, complete with lecture about local custom.
If, in the course of preparing for oral argument, you should come across a crucial case that you wish you’d cited–or, better yet, if a great new case comes down–send a letter to the Clerk. Copy opposing counsel. Alert the Court, in a straightforward, non-argumentative way, to the existence of the authority. Advise all parties that you intend to rely on it at argument. Do not discuss, analogize, advocate, or pontificate. This is the only fair way to proceed.
There’s one exception to this rule: if a justice asks a question and, to answer it completely, you need to refer to a case outside the briefs, that is acceptable. Just make it clear what you’re doing.
* Seriously, how great was that character? Carrie will attest that, for a good two weeks after seeing The Social Network, I walked around the house speaking in Winklevoss.