Friday, January 3, 2014

"Appellate attorneys, flailing in the dark"

That's the title of Paul Berger's piece in today's DJ about tentative opinions. Paul served as a research attorney in the 1st and 3d Districts for three decades and has watched hundreds of oral arguments. His view: tentatives are the way to go because they "significantly improve" the quality of oral argument and help the court decide whether to publish.
Without tentatives, oral argument becomes a "minor variation" of What's My Line with lawyers flailing around at argument trying to locate the pivotal issues.

"a court with a tentative opinion system actually changes its position more, not less frequently, than the traditional appellate court who hides the ball"

"The real question is, are you going to let counsel see the facts and legal issues you are relying on before they argue, or let them play treasure hunt for half an hour or more trying to ferret them out? The question answers itself. What appellate lawyer would say "no, please don't let me see it. I love surprises"?"

Oral argument w/o tentatives?