Today, I had the opportunity to argue in front of the Second Circuit Court of Appeals in downtown Manhattan. (Hence the reason for the sparseness of posts lately).
Although I have been there before, it continues to rank among the most profession
ally rewarding experiences in my career. Every attorney who dreams of an oral argument in law school should have such an opportunity. Most of us will never get to the U.S. Supreme Court but if going to the Second Circuit is the "silver medal", I’ll take it.
As is consistent with my practice on this blog, I’m not going to talk about the merits of the case I argued (you’ll have to read about it from others), but because of uniqueness of appeals, I thought I would share some random observations about the proceedings.
- First off, the court remains "old-school" in its approach to technology: Check it at the door. No Blackberrys, iPhones, iPods, iPads. You name it. While this removes the temptation of a digital distraction, it still seems somewhat overkill in today’s legal environment. You go into your legal battle with only what you can carry. Here’s a tip though: If you rely on your cell phone to tell time, bring your watch. Otherwise, you may end up feeling a bit lost in time.
- Hopefully, if you ever have argument (either as an attorney or client), you’ll be in the main ceremonial courtroom on the 9th floor. While the building is fairly new, the courtroom has a wonderfully majestic feel to it. Wide expansive windows line the room (with a view of Manhattan bridge) and lots of wood paneling. Comfortable leather seats adorn the front. It can seat dozens of people and has modern updates that make it a court that you can feel comfortable in.
- But it is the front of the room that defines it and gives it its aura. Several long wooden judges’ benches go basically the width of the room and rise up in front of you. You cannot help but appreciate the magnitude of the event as the benches rise up and up.
- If that’s not enough, there’s also bits of history dotted around the room. I liked the bust of Judge Learned Hand as you enter the room on the left-hand side — one of those judges who made an impact on society without ever rising to the U.S. Supreme Court.
- Ever think time moves too slow? Try your hand at oral argument, where ten minutes has never been quicker. A timer may track your progress in front but its no use fighting it, the time allotted will never be enough.
- The Second Circuit is one of the last remaining courts where nearly every party is allowed oral argument in their appeal (many other Courts of Appeal have abandoned that practice). Every time I go, I find a newfound appreciation to that practice and I’m warmed by the concept that everyone is still entitled to their say, no matter how weak their arguments may truly be. Yes, it is expensive, but there’s still something about our system of justice that cries out for such a practice. (To read a spirited defense of such a practice, see this article.)
- And don’t show up late — the court is as on-time as the famed European trains. A change of pace from some state courts where an argument in the morning can sometimes turns into one in the afternoon.
For employers and businesses that are involved in litigation, going to the Second Circuit is a stark reminder about how all the facts in your years-long case can get whittled down to just a few items in an appeal. There’s rarely time to mention it all and it really should be the last place you want to be if you’re in litigation. You just never know what the court will do. It may be an uplifting experience for oral argument, but the time and expense necessary to file the appeal and prepare are not insignificant.
Perhaps its best to remember this at the beginning of a case when there may be a decision to settle early or fight. Sometimes you have to fight. But sometimes the long road not taken — no matter how scenic or majestic the path may be — is the better choice.