I haven't listened to the tape and don't intend to. From the short written
story, probably they should both be embarrassed. The lawyer behaved badly,
and Posner over reacted.
Big firm lawyers sometimes expect special deference from lower court judges.
Sometimes they get it. Maybe he thought he should/would be allowed to
interrupt or equivocate. But Posner was the wrong judge to try that on.
Back in Neolithic times, when I clerked at the Seventh Circuit, we had an
antitrust case with a complicated statutory interpretation question -
complicated principally because the statute wasn't very well drafted. The
facts were simple. In those days vertical price fixing was a per se
violation, but there was an exception for state fair trade laws, and the
question was which state's law applies.
A partner from Sherman & Stearling came out from New York to argue the case,
and seemed to think he was visiting the less educated provinces. He drew a
panel of Stevens, Cummings, and Sprecher, which was about as good a
three-judge panel as you could draw anywhere in the country in those days.
And Stevens had been an antitrust lawyer.
But the guy was completely condescending. He brought an easel with an
outline map of Missouri and Arkansas, showing a wholesaler in one state and
a retailer in the other, so that they could understand this complicated
choice of law problem. He went way over his time. His tone and demeanor was
condescending. Cummings was a soft touch presiding and let him get away with
it.
Posner obviously would not - not in that case and not in Notre Dame's
either. Jones Day should have been able to learn that with the tiniest bit
of homework. Wyzanski was worse; he would berate and humiliate lawyers who
didn't meet his standards.
The only safe thing for lawyers is to play by the usual rules. But if you
think you can create an exception, you have to know what judge you are
talking to.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Friday, February 14, 2014 7:47 AM
To: CONLAWPROFS professors; Law Religion & Law List
Subject: Posner on oral advocacy in religion case
Judge Posner gives 1L lesson on oral advocacy to Notre Dame's lawyer on oral
in freedom of religion case. Pretty basic 1L stuff. Embarrassing for the
attorney - and his firm and school.
http://www.abajournal.com/news/article/Posner_tells_BigLaw_chief_stop_babbli
ng_threatens_to_end_7th_Circuit_arg/?utm_source=maestro
<http://www.abajournal.com/news/article/Posner_tells_BigLaw_chief_stop_babbl
ing_threatens_to_end_7th_Circuit_arg/?utm_source=maestro&utm_medium=email&ut
m_campaign=weekly_email> &utm_medium=email&utm_campaign=weekly_email
--
Prof. Steven D. Jamar vox: 202-806-8017
Director of International Programs, Institute for Intellectual Property and
Social Justice http://iipsj.org
Howard University School of Law fax: 202-806-8567
http://iipsj.com/SDJ/
"Enduring high school is not the same as growing up Jewish in Prague or
fighting in the French Resistance. I had no solid basis for being cool in
that existential motorcycle James Dean absurdist chain-smoking hero sort of
way, so I gave up being cool and settled for being pleasant."
Garrison Keillor
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