The Wrong Question? The Wrong Answer? It Depends

The correct answer to every legal question, I regularly say, is "It depends."  

• I have a lawsuit, don't I?  It depends.
• The drugs will be suppressed, won't they?  It depends.
• That means there's reasonable doubt, doesn't it?  It depends.
• My lawyer fucked up, so I get a new trial, right?  It depends.

Clients hate it.  Reporters looking for quotes hate it.  You're uncle who's been arguing with his neighbor about the tree that drops sap on his car when it's in the driveway hates it.  But dammit, it does depend.

It depends on all the facts and circumstances.  It depends on whether the burrito the judge had for lunch gave him gas.  It depends on whether the lawyer or the judge won the last round of golf and whether the jury thinks your lawyer's tie is ugly or her skirt's too short.

So yeah, the correct answer to every legal question is, "It depends."

Except, of course, when it isn't.

Over at Fault Lines, Andrew Fleischman examined the oral argument before the Georgia Supreme Court in West v. The State to draw lessons from When Oral Argument Goes Wrong.  It's a useful tutorial and the lessons are general sound.

• Know the law.
• Policy arguments are nice but focus on the law.
• Take the other side seriously and respond to what they're arguing.
• Sometimes it's better to shut up and let the other side screw themselves.
• Courts really try to focus on the law, not the lawyer, even when they fail.*

Sure.  Good advice and good things to know.  

But sometimes --

The Supreme Court of Ohio as it's properly called.  Oral argument in State v. Cepec, a capital appeal.  Nathan Ray, representing Mr. Cepec, was just getting rolling.  Cepec's trial counsel, Ray was arguing, screwed the pooch provided ineffective assistance in violation of his client's rights under the Sixth Amendment.  

It's standard stuff.  There's a two part test, first set out in 1984 by the Supreme Court (the big one, in DC) in Strickland v. Washington.  

First part:  Was the lawyer's representation was objectively deficient? If you held a mirror up to the lawyer's nose what would have happened?  If it would have gotten foggy, the lawyer was good enough.  If not, it's on to the second part of the test.

Roll the tape:  Justice Judy Lanzinger's asking questions.  She's just gotten Ray to assure her that he is, indeed, making a Strickland argument.  Minute 5:50:

What about the outcome determinative part of that test, though?  Are you saying that if, if, they hadn't made these mistakes at the trial that you're arguing about that the outcome would have been different?

To which Nathan Ray gave exactly the wrong answer.  

Yes.

He said.  And then he began to explain why.  

All of which seems reasonable and satisfied Lanzinger.  Not on the merits, I suspect, but on the substance.  She got her answer simply and directly.

Yes.

Which is one of the things they teach in law school - answer the judge's question (a lesson Andrew didn't draw from West v. The State, but he was writing a post, not a book addressing every issue).  

So, cool.  Except, as I said, it was exactly the wrong answer.  Because the second part of the Strickland test is not whether the lawyer's incompetence was outcome determinative.  It's not whether if the lawyers didn't make those mistakes "the outcome would have been different."  Hell, it's not even whether the outcome would probably have been different.

[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.

Strickland at page 693.

That's worth repeating, this time adding some boldface.

[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.

Oh, there's some bar.

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.

(citation omitted).

There's even an actual standard.

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

And no, I don't really know what that means, either.  Except that it's more than a mere theoretical possibility ("some conceivable effect").  And it's less than probably.  One more time.

[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.

Which means, to return to Judy Lanzinger's question and Nathan Ray's answer, that she asked the wrong question and he gave the wrong answer.

Because the right answer wasn't 

Yes, the errors were outcome determinative.

The right answer was

That's the wrong question, your Honor.  Strickland  specifically says that the second part of the test isn't even whether competent lawyering would probably have made a difference. 

Of course, it's not just Judy Lanzinger.  Our judges and justices routinely demand showings of harm far greater than the law requires.

And we let them get away with it.  Unchallenged.  

They're supposed to know the law.  We can't make them learn it, and we sure as hell can't make them follow it if they don't want to.  But we can damn well insist on telling them that they're fucking our clients because they insist that we have to prove more than we do.

No, it doesn't depend.  And it's damn well not outcome determinative.

One last time.

[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.

Judy? Nathan?

Bueller?


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*These are my summaries of Andrew's captions.

Mum's the Word

If you pay any attention at all to these sorts of things, you know that Clarence Thomas rarely asks questions during oral argument at the Supreme Court.  Rarely as in it's been five years, at least it will be on Tuesday.  And five years is a really long time to keep your mouth shut.

The NY Times led the charge.  First Adam Liptak reported the, er, news of the upcoming anniversary.  Then there was the Room for Debate set of mini op-eds.  And then the actual editorial.  On Bloomberg, Ann Woolner joined in.  And Dahlia Lithwick used it as a springboard to talk about Thomas and the places where he does speak.  Surely others have joined in the discussion, too.

Aside from rehearsing the variety of explanations Thomas has given over the years for why he is silent on the bench (and staring at the ceiling when he isn't exchanging quips with the Justice next to him), the back and forth of the commentariat is really grounded in two questions.

1. Does oral argument serve any purpose?
2. Does Thomas's refusal to participate have any significant consequence?

Appellate judges generally report that oral argument is important.  I've heard a number say that it changes the outcome of a case about 20% of the time.  (Which raises the question of why in so many courts you have to convince the judges to allow oral argument.  Perhaps the judges don't want their minds changed more often.)  Frankly, I've never believed it. The only credible explanation I ever heard came from a prosecutor I was talking to about it.  

Twenty percent of the time, the briefs are so bad that the judges can't figure out what the case is about until they get the lawyers in front of them. 

Maybe.

But the percentages don't answer the question.  After all, if oral argument makes a difference in the outcome of just one case, it matters in that case.  And there's no way to know in advance (or mostly even after-the-fact) which case is the one.

Last year, I wrote this.

It's always seemed to me that more cases are lost at oral argument than won. There's always the chance that the attorney for the state (which is, after all, usually the winner) will say something so mind-bogglingly stupid that the court just stops and stares. It happens more than you'd think. Mostly, though, nothing comes of it. By the time they vote, they've left the amazement behind.

It was true then.  It's true now.

In fact, even the really unlikely happens and oral argument actually wins a case.  That probably happens most when you find a new tack.  Something that looked like a throw-away in a brief turns into a potent weapon when it becomes the surprise focus of argument.

And even if oral argument doesn't change the outcome, it might change the vote or the breadth of the opinion or the offered rational.  It might influence, that is, the way the law ends up being applied or how it develops down the road.  Those aren't petty things.

And, of course, the clients like to see the lawyer up there fighting the good fight.

So yes, oral argument matters.  It serves multiple purposes.  Even though most of the time it's just an exercise.

Which forces at least a brief look at the second question.  Does Clarence Thomas matter?

I've argued a whole lot of cases, and spoken with lots of other appellate lawyers.  None of us like a silent bench.  Oh, it's less work I suppose not to have to think on your feet, just to give your set speech and sit down.  But it's irritating and frustrating.  We want to engage the panel.  We want some give and take.  Tell me what you're thinking or wondering about or just have a passing interest in and I can try to use that, maybe even switch the whole focus of my argument.

(I remember the death penalty case in the Ohio Supreme Court where I wanted to talk about how the entire sentencing proceeding was fucked up but the justices all wanted to talk about how weak the evidence of what made it a death-penalty murder was.  They were right, the evidence for that sucked.  We'd argued it in the brief, but didn't imagine the court would care much.  But they picked the topic, so we talked at length about the offense and the evidence.  They didn't rule my way on that question, but the did reverse the death sentence - and one reason, I'm certain, is that they had serious doubts about whether my client was actually eligible for the death penalty.)

And Thomas just sits there.

The Times editorial says he should ask questions to show that he's serious.

[H]e would show his dedication to the court’s impartiality and to its integrity as an institution. 

That strikes me as silly.  He shows (or doesn't) that dedication through his opinions.  Oral argument is, as all courtroom performance is, a form of theater.  But the judges and justices ought not to be treating it that way.

At Room for Debate, neither Orin Kerr nor Vickram Amar see any substantive issue.  If Thomas doesn't choose to speak at oral argument, that's really his business and doesn't make any difference anyhow, though Amar joins the Times in finding a theatrical value to questioning.

But one aspect of a justice's job might require participation in oral argument. This has to do not with communicating with other justices, but rather communicating with the public. America needs to have confidence in the court as a whole, and in each of its members. Because oral argument is one of the few chances the public has to see how -- and that -- the justices' minds function, it can be a beneficial reminder to us all that the members of the court do their own thinking and their own work. Written opinions don't quite perform this function, because of the possible but unknowable influence of law clerks. 

That would make a whole lot more sense if "the public," whoever they are, had any actual interest in or knowledge about oral argument.  Oh, the gallery at the Court fills, but that's mostly tourists and civics classes and a small number of people who really care about the particular case or about Court business.  Go to any typical appellate court in the country and the gallery will, typically, contain only lawyers and staff, maybe a client or two perhaps accompanied by family, possibly a few reporters, and maybe a bunch of students.  The public mostly isn't there and doesn't care and wouldn't know it was watching.  

Trials are the sexy things.  Appeals are for geeks.

Jamal Greene has a more coherent take.  Why bother with argument if you're not interested in what anyone says, your min is made up, and you don't care to try and push the rest of the bench to see things your way.

More generally, though, many of the reasons for oral argument assume that the justices are either keen to persuade others of their views or are open to persuasion themselves. There is little evidence that Justice Thomas fits this description. He is a judicial iconoclast, opposed to following constitutional precedents with which he disagrees and unwilling to moderate his positions to achieve consensus. 

It's the guy with the empirical data, Timothy Johnson, who takes a significantly different tack.  Oral argument is, he says, substantively important.  It makes a real difference.  Trust him.  He has the numbers.  OK.  Let's pretend he's right.  What does that have to do with whether Thomas should (for whatever reason) ask questions?  he doesn't even hint at an answer.

And really, neither does anyone else much.  Beyond theater.

He should engage in oral argument because it makes him seem engaged.  That's the best they can do?

Thomas speaks when he wants.

• When he's promoting his book.
• When he's talking to conservative audiences in tightly controlled settings.
• When he's doing the talking.

He doesn't speak at oral argument because, well, he doesn't.

So be it.

Maybe he's not curious.  Maybe he's embarrassed.  Maybe he really does want just to hear what the lawyers have to say.

And of course, insofar as court is theater, and I repeat that it is, his silence is his own theatrical statement.  His script.  He won't play the game.  He's too serious.

Silence is speech.  Here's the text.

You want to know what I think, what motivates me.  Read the damn opinions.

What's interesting is how few people get it.

My Mother Taught Me Not To Do That

Yesterday we had oral argument in federal district court in Darryl Durr's DNA case.

Actually, the DNA isn't the issue in federal court any more than it is for Hank Skinner right now at SCOTUS. The issue is whether Ohio law should provide review of the truly sloppy and ill-considered opinion denying Durr the right to DNA testing of the necklace when it provides that review for prisoners in his position who aren't on death row.

I laid it all out, explained it carefully to the judge. Then it was the turn of the lawyer from the Attorney General's office.

I'm going to refrain from talking about the substance of what he said. I want to talk about his manner.

For nearly the entire time he spoke, he shook his finger at the judge.

As if berating the judge.

Which seems like really bad form.

We're still waiting for a ruling from the judge.

The necklace still might reveal something.

Darryl Durr still sits on death row.

Ohio still plans to kill him on Tuesday.

Legal Reasoning and Legal Reality

I want to write about legal reasoning and the realpolitik of courts and about oral argument.

Defending People's Mark Bennett is pushing a discussion about the Boucher case which involves a grand jury subpoena and the effort to get Boucher to unlock the z drive on his computer and show the grand jury that he has child porn on that drive. It's an interesting case on the merits and might prove important.

I'm not interested, here, in talking about the Boucher case itself. (You can learn about it - and if you've got something incriminating on a computer you probably should learn about it, from Bennett's site, where you can also find, in the comments, my take on it.)

What does interest me here is the underlying jurisprudential question Bennett raises: How do judges decide things. I'm not talking here about how they decide who to believe (the cop in a criminal case, for instance, just because he's a cop) or principles of constitutional interpretation. This is both less grandiose and, on a day-to-day basis for practicing lawyers and their clients probably far more important.

Here's the model of a legal argument presented in the form of a brief oral argument on a motion before a trial judge - and the sort that too often shows up in law school textbooks and, phrased differently, on law school exams.

ATTORNEY A: Your Honor, this case is just like Humpty v. Dumpty. My client's leg is shattered and cannot be put together again. Therefore the defendant must pay for the loss of my client's leg.

ATTORNEY B: Your Honor, that's just silly. This case is nothing like Humpty. First, we're talking a leg, not a whole body. In fact, this case is exactly like and controlled by the outcome in Jigsaw v. Puzzle. The leg is broken, but any competent surgeon can put the pieces in order and bind them together.

ATTORNEY A: Body, schmoddy. The thing is shattered and can't be repaired, which is the essence of Humpty.

ATTORNEY B: No, no, no. Humpty is about total loss. This is Jigsaw.

The argument, you see, isn't ordinarily about whether Humpty or Jigsaw correctly states the law. It's about whether this broken leg is more like the story of Humpty Dumpty or more like a jigsaw puzzle, knowing it's not actually all that much like either. It's about analogies.

And when we argue to the court that it should do this or that, what we're mostly doing is finding the analogy we like and explaining that it's the one the court should think is closest to the case at hand, not the analogy the prosecutor is pointing to. But it's complicated because the analogy is not the thing itself, and you can usually find something for just about any point.

[In this way, law is to be distinguished from, say, Swedish society as described in the crime fiction of Maj Sjowal and Per Wahloo. In one of their books (I'm doing this from memory and don't have the book before me, so I may have a detail wrong), a character explains that in Sweden "all things are either required or forbidden." In the law, by contrast, and as a consequence of the sheer mass of case law out there, it's not much of an exaggeration to say that all things are both required and forbidden. You can, that is, find authority to support almost any argument if you can just figure out how to shoehorn your facts into the right analogy.]

A couple of hours before Bennett posted about Boucher yesterday, a friend and I were speaking about oral argument. He observed that if a case is well briefed and if the judges read the briefs before argument (neither a sure thing, but it was in the case he had and the court where he most practices), the judges have already made up their minds before oral argument, so why not waive it. You're more likely to dig a hole or say something stupid or give the prosecutor a chance to save his case than to benefit from argument, he said.

Of course, the first rule is that there are no rules. Everything depends on the particular case and the particular court. But for reasons I've never fully understood, appellate judges really believe oral argument matters. As them and they'll say so. Poll them and the results are overwhelming. Typically, what you hear is that argument makes a difference in something like 20% of the cases. I've always found that figure astounding, but as another appellate lawyer once speculated, "Maybe 20% of the time the briefs are so bad that the judges don't have any idea what the case is about until oral argument."

Actually, I think it means something more like, 20% of the time an individual judge finds that oral argument helps clarify the decision that judge has already reached. It's a confirmatory 20%, not an outcome changing 20%. And it's probably easier to lose a case during argument (by saying something really stupid) than to win one.

Here's what Justice Scalia and Bryan Garner have to say in Making Your Case: The Art of Persuading Judges:

Many lawyers view oral argument as just a formality, especially in courts that make a practice of reading th briefs in advance. Sure it gives counsel a chance to show off before the client. But as far as affecting the outcome is concerned, what can 20 minutes or half an hour of oral argument add to what the judge has already learned from reading a few hundred pages of briefs, underlining significant passages and annotating the margins?

This skepticism has proved false in every study of judicial behavior we know. Does oral argument change a well-prepared judge's mind? Rarely. What often happens, though, is that the judge is undecided at the time of oral argument (the case is a close one), and oral argument makes the difference. it makes the difference because it provides information perspective that the briefs don't and can't contain.

Well, maybe. Scalia operates in a pretty rarified world - one where judges may (do they, really?) actually read, underline, and annotate hundreds of pages of briefs before argument. And his is a world where the Court decides few cases, and those raising issues that have often split lower courts. Most of what we do in the appellate courts isn't like that. Mostly we're arguing for some sort of error-correction. We get 30 pages to the side for the brief. No amicus in all likelihood. And the case is likely something close to a sure loser.

That much said, the process is the same. Humpty is like this case. No it isn't, Jigsaw is.

Except that the court has probably already decided whether it's Humpty or Jigsaw that controls. And I'm not likely to get far in changing their mind unless I have some fresh approach or focus or something. And that goes to the underlying question I started with: How does the judge decide which analogy to buy?

There are two possibilities. The judge can reason forward or backwards. If the judge reasons forward (which is what all judges claim to do and most believe they do), it looks at the facts and studies the law and determines, ultimately, whether this is more like A or like B. If the judge reasons backwards (which is what a very large percentage of judges do much of the time - often subconsciously, I think), the judge looks at the facts and decides what the right outcome will be and then concludes that of course the case is more like A or like B.

If that's so, if my real world understanding of how judges decide (or commonly decide or something) is so, then my job as appellate advocate is complicated. Because while I have to make the argument going forward, I have to convince the judge going backward.

You want, Your Honor, to find for my client. And here's the case law/legal reasoning that lets you do it.

And that, when you get down to it, is why I go to oral argument.

SILENCE IS GOLDEN

Adam Liptak reports in today's Times (here) on a series of studies each of which demonstrates that the way to win your case in the U.S. Supreme Court is to not get asked questions. The first study was by a law student at Georgetown, the second by then Judge, now Chief Justice Roberts. Now, Liptak reports, a far larger and more comprehensive study by several academics (abstract here) reaches the same conclusion.

The moral? Liptak quotes Timothy A. Johnson, one of the new study's authors, who suggests that it might be good advice to avoid questions:

“The old adage that you should keep your head down may be the way to go,” he said. “The advocate who tried to throw in the kitchen sink and try every argument in the world may be heading for trouble.”

Ms. Shullman, the young lawyer who started this enterprise, said she applied her study’s conclusions successfully not long ago in a bankruptcy hearing.

“The judge was really hammering the other side,” she said. “You know what? I’m going to shut up. I’m going to let this play out. And sure enough, he ruled for us.”

Perhaps the better part of advocacy really is learning to shut up.