I argued in front of the Supreme Court today. (“In Washington, D.C.?” says Cole this morning when I tell him what I’m up to. No, buddy, Indiana.) The case was J.M. v. Review Board – that link takes you to the oral argument page. Here is the Court of Appeals decision that was vacated when the Supreme Court granted transfer.
I don’t want to go into much detail as to the substance of the case because it’s still under review, and, generally speaking, I don’t talk about specific cases I’m handling too much on this blog. But, basically, it had to do with whether an employee was discharged for just cause or not. If so, the employee is not entitled to unemployment benefits. If not, the employee is. The primary wrinkle for the Supreme Court had to do with the fact that IC 22-4-15-1(d) has a number of examples of ‘just cause’ for termination. The Court of Appeals felt like the example selected by the Review Board was not well supported. I made the argument that even if that particular example wasn’t well supported, some of the others were. The Court of Appeals said they couldn’t look to any other example other than the one chosen by the Review Board. I said they could and asked the Supreme Court to say so as well.
The process itself is a little like a dog chasing a car. You get an opinion from the Court of Appeals you don’t think much of and the only recourse is to go above their heads to the Supreme Court. But, grants of transfer by the Supreme Court are discretionary – most petitions get denied. But, you file your petition, and then mostly forget about it. Then one day, you get your order from the Supreme Court, jog your memory about the case, and then scan for the denial of your petition. Only, this time, the petition is granted. The Court of Appeals decision is vacated, and your case is live again.
And, as in this case, if oral argument is ordered, you have to re-learn the case again. So, that’s what I did. I went through the briefs. But, I had to do more. The difference between writing a brief and doing oral argument is that when you cite a case for a proposition in front of the judge, he can ask follow up questions. To answer them, you have to know, not just a snippet of language, but probably the factual background. Then that case has probably relied on other cases, and the whole thing just snowballs on you. It doesn’t matter how simple your legal issue is, once you start running the argument in your head, it can lead down any number of rabbit holes that you have to feel prepared for.
And you can get well prepared for the central parts of the argument. But, the body of law is vast and interrelated. You just can’t know it all. So, it’s never entirely clear when you’re “finished” preparing. You just run out of time. At least that was my experience. I’d gone through the cases and the transcripts and the briefs as much as I could and, last night, mostly threw out my oral argument outline and wrote a new one. Much better than my last. I rehearsed it, and it seemed to hold together fairly well.
But, with me, working that hard for a few days starts making it hard to sleep. If I don’t allow for enough down time before bed, my mind keeps running, and I have a tough time nodding off. That was my experience last night. I drifted off at about 1:00 a.m., woke up periodically, afraid I’d oversleep, and woke up at about 6:30 a.m. Upon waking, I realized I couldn’t remember my entire outline and there were cases I felt like I ought to know, but I could remember only their names and not their facts or why they mattered. Not surprising immediately after 5-6 hours of sleep; but not entirely reassuring either.
On the drive down to Indianapolis, there were a number of news reports about the ongoing oral arguments over Obamacare before the U.S. Supreme Court. I was just happy I wasn’t those guys. That’s an enormous amount of pressure. Downtown, I first looked at the state parking garage. If memory serves, when I was working down there, one or both of the garages offered parking to the public. But, not the case now. But, things were slow downtown at 8:45, and parking was no problem. Mostly when I walked into the State House, I was soaking in old memories from my days at LSA. But, I couldn’t help noticing a couple of things: first, there are were a lot of low number license plates in the surface lot adjacent to the building. Second, the first floor of the State House where the hearing rooms are looks really shabby. Even a fresh coat of paint would do wonders.
Anyway, I wandered up to the second floor and checked in – signing in with the Sheriff in front of the court room doors. Then, I went into the law library next door. Spending 15 minutes looking over my outline and the cases I’d highlighted calmed me down quite a bit. Then, I was able to talk for a few minutes with counsel for co-appellees to make sure we were on the same page. Since we were on the same side, there was only 20 minutes allotted for oral argument for the side, and it was up to us to coordinate its division. Since I’d filed the petition, I got the lion’s share – taking 15 minutes and leaving 5. (Which turned into about 18 and 2 in practice since the 15 minute mark came just as a longish question was forthcoming from one of the Justices.)
Then we went into the court room where the court staff was very helpful in assisting us with the mechanics. Pro-tip: Just shut up and listen to these people. They’re unfailingly polite, but I have to think they get tired of exchanging niceties with a bunch of big-ego lawyers all jacked up in anticipation of a big argument. A couple of unexpected bits of logistics – the lectern is a lot closer to the Justices than I had anticipated; and there is not a lot of room to set down many papers if you were hoping to be able to refer to them during the argument.
One helpful thing in calming me down was getting to observe the other lawyers involved in the case. It’s helpful to see that they are in the same boat as you; have the same struggles with nerves and preparation. In my case, the other side went first. Then, I was up. I always have the hardest time just delivering a presentation.
I hear that football players in a big game struggle a bit until the first hit, then it’s just football. I guess maybe that’s how I am until the first question. Once the first question came, I started enjoying myself. There’s something I really like about the mental exercise of answering a question but doing so in a way that advances one of the points you’re trying to make. Incidentally, once the questions started coming, that outline I was sweating over went right out the window. And I only managed to blurt out a couple of case names. I don’t know that the Court asked about any of them in particular. Mostly they posed hypotheticals or asked how the law did or should apply to particular scenarios.
And, then it was over. It felt like the argument went fairly well. But, even though I hadn’t been in front of this body before, I’ve been at this long enough to know not to try to guess about the decision based on the oral argument.
I don’t know about anyone else, but when I was figuring out what I wanted to do with my life and was envisioning being a lawyer, this is the type of thing I envisioned. (Even as I understood it was rare.) It’s just a privilege to have the kind of practice and clients that allow me to do such things.