Friday, July 23, 2021

Judge Milan Smith Q&A

I have no present intention
of ever going senior or retiring.
Today's DJ has William Domnarski's Q&A with 9th Circuit Judge Milan Smith:

  • I have ... long admired the integrity and courage of Justice John Marshall Harlan (1833-1911), the great dissenter of the 19th century. Although he was clearly out of touch with the zeitgeist of his era, and may not have been the most gifted member of the Supreme Court in its long history (Justice Oliver Wendell Holmes, Jr. told his law clerk, Dean Acheson, that Justice Harlan's "mind was like a vise, the jaws of which did not meet. It only held the larger objects"), he had a clear moral compass, which led him to write some of the most important dissents ever written on the Supreme Court, many of which have ultimately led to important legal reforms in our time. Among others, he wrote stirring dissents in the Civil Rights Cases, Plessy v. Ferguson and Lochner v. New York.

  • Because almost all 9th Circuit judges come into oral argument having read the briefs, important parts of the record, and the underlying cases, statutes, or regulations, they have essentially reached a tentative conclusion before they ever hear counsel argue their cases. Accordingly, I believe that the writing of persuasive briefs is the most important thing an appellate lawyer does. I believe that the primary purpose of oral argument is to answer the questions that judges may have about your case that were not answered fully in the briefs. If you have a problem issue, try your best to answer it in your oral presentation. Trying to hide the ball will not help you because the judges almost certainly know about the problem, and have likely formed an opinion before argument about its effect on your case. When asked a question about your problem, try to answer it in a straight-forward conversational manner, and be prepared to respond to questions about the impact of contrary cases, and what the record shows about your issue. Most importantly, don't misrepresent anything to the court, such as what a case means, or what the record reflects. If you are perceived as a prevaricator, it is likely that no significant part of your message will be believed.
Also of significance: The Western Center on Law & Poverty does the world a service by posting Brief Writing Tips from Richard Rothschild (Part 1).