Monthly thoughts

How to Annoy the Court of Appeal in Four Easy Steps

Tue, 26 Jan 2010 09:17:58 -0800

Step 1: The guru of legal writing is someone called Bryan Garner. He edits Black’s Law Dictionary. He also presents legal writing seminars nationwide. (www.lawprose.org.)
I’ve never been to one, although I’ve heard great things about them. But Garner gives out one piece of advice that’s really bad. It’s number-one on my list of how to annoy the Court of Appeal.
The advice: “Put your case citations in footnotes.” According to Garner, citations mid-paragraph disturb the flow of prose and distract the reader.
The flaw in Garner’s advice is that some people actually want to read the citations. The source and nature of authority may be of more than mere passing interest. And there’s nothing more giddy-making to the legal reader than making one’s eyes go up and down the page between text and footnotes, like someone watching a tennis game on paper.
No doubt there may be some Justice or research attorney buried in the California appellate system who favors this. But I have heard scathing comments on the Garner footnote idea from members of the appellate bench at MCLE events.
Step 2: How about refusing to stipulate to extensions of up to 60 days for principal briefs? As a practical matter, the Court of Appeal virtually always grants applications for such extensions — usually in two lots of 30 — if there is a vaguely plausible request. But stipulations save the Clerk’s Office time. Ones of up to 60 days are effective on filing and don’t require a Court order. (I’m talking about state court. The Feds do things differently.)
Lawyers who don’t stipulate to extensions are making work for everyone. And they’re probably making life difficult for themselves, because the chances are they, too, will need an extension.
I know that clients sometimes don’t like it if their lawyer agrees to extensions. But this is an instance of where the lawyer should call the shots. I make it clear in my fee agreements that I may enter into 60-day stipulations.
Step 3: Oral argument presents plenty of opportunities to annoy. Both sides are entitled to up to 30 minutes. But except in rare cases, you’ll make yourself very unpopular if you insist on your full allocation. Fifteen minutes is generally a reasonable maximum — 5–12 usually suffice.
Probably the worst oral argument I’ve ever seen was about a year ago. I was defending an appeal. It wasn’t a complex case. The appellant was funded by an insurance carrier, and the law firm seemed determined to milk the file.
For a start, it sent two lawyers to oral argument. Both sat at the counsel table — and, no doubt, billed — although only one argued. He had put in a 30-minute estimate. And he literally started to read out long paragraphs from cases.
Since cases are called in order of time estimates, with the shortest first, we were stuck at the end of the morning calendar (resulting in both of those lawyers being able to bill to the max). It had actually gone past the noon hour. People wanted to go to lunch. And this guy droned on, seemingly oblivious to the irritation he was causing. Eventually, he was cut off. Surprisingly, he was a certified appellate specialist.
Step 4: One often sees lawyers arriving for oral argument lugging piles of banker’s boxes containing the record. As though they’ll have an opportunity to do anything with it in the short span of their argument.
But that’s their problem. What is annoying is when the record ends up much bulkier than it need be. All too often, lawyers put virtually the whole Superior Court file into a multi-volume Appendix or Clerk’s Transcript, but then cite to only a fraction of what’s there. Don’t bloat records (unless you want to annoy). Someone at the receiving end has to handle all that stuff.

Typos Cost Lawyer $150 per Hour

Thu, 31 Dec 2009 01:07:30 -0800

Recently, in a case in which I am handling for an appellant, the respondent’s brief was rife with typographical errors. Not just a few, but I mean literally dozens, maybe as many as 100.
Typographical errors are bad in appellate practice, where written argument is by far the most important part of the process. The odd error is forgivable. Few practitioners are blameless. But, if they occur in quantity, they reveal a sloppiness that casts doubt on the rigor of the overall work behind the document.
Such were the concerns of Judge Jacob Hart of the United States District Court for the Eastern District of Pennsylvania in a written opinion I cam across recerntly. In the case of Devore v. City of Philadelphia, 2004 U.S. Dist. LEXIS 3635, Judge Hart had the task of awarding attorney fees to a trial lawyer for written work in a civil rights case. (This wasn’t an appeal, but the lessons apply to appellate practitioners, nonetheless.) Due to an overabundance of typographical errors in papers filed with the court, Judge Hart awarded the lawyer just half of the claimed rate of $300 per hour for the written portion of work. The opinion stated:
“As previously mentioned, Mr. Puricelli’s filings are replete with typographical errors and we would be remiss if we did not point out some of our favorites. Throughout the litigation, Mr. Puricelli identified the court as “THE UNITED STATES DISTRICT COURT FOR THE EASTER [sic] DISTRICT OF PENNSYLVANIA.” Considering the religious persuasion of the presiding officer, the “Passover” District would have been more appropriate. However, we took no personal offense at the reference. In response to the attorneys’ fees petition, the Defendants note that the typographical errors in Mr. Puricelli’s written work are epidemic. In response to this attack, Mr. Puricelli writes the following: ‘As for there being typos, yes there have been typos, but these errors have not detracted from the arguments or results, and the rule in this case was a victory for Mr. Devore. Further, had the Defendants not tired [sic] to paper Plaintiff’s counsel to death, some type [sic] would not have occurred. Furthermore, there have been omissions by the Defendants, thus they should not case [sic] stones.’
“If these mistakes were purposeful, they would be brilliant. However, based on the history of the case and Mr. Puricelli’s filings, we know otherwise. Finally, in the most recent letter to the court, asking that we vacate the settlement agreement, Mr. Puricelli identifies the undersigned as “Honorable Jacon [sic] Hart.” I appreciate the elevation to what sounds like a character in the Lord of the Rings, but alas, I am but a judge.
“In his reply to the Defendants’ response to the petition for attorneys’ fees, Plaintiff’s counsel argues that his typographical errors require no more than a $20 per hour reduction. We disagree. As we previously stated, Mr. Puricelli’s complete lack of care in his written product shows disrespect for the court.”
Preaching against typos is one thing. Avoiding them is another. Spell checks can only achieve a certain amount. Not all errors will be caught. Proofing one’s own work tends to be ineffective. One tends to glaze over one’s own errors, reading what one expects to see. The best solution is to have a fresh mind read a brief or motion before it is filed. I have two people proof read all of my briefs. If one must proof one’s own work, it’s best to do so after not having looked at the document for at least 24 hours — and, ideally, at whatever time of day one’s mind is at its freshest.

The Rise and Flaws of the Billable Hour

Sat, 7 Nov 2009 06:44:29 -0800

Mention the term “billable hour” in the context of the practice of law and you’ll typically be met with reactions ranging from a wince to a jaded, perhaps even conspiratorial, smile.
What you probably won’t encounter is anything very positive. Although the billable hour dominates the way in which legal services are charged, remarkably few people speak about it with any enthusiasm.
Across large parts of the legal profession — as well as among clients and law students — the billable hour is widely criticized, often loathed, and even ridiculed. During the past 10 years, moreover, some of the sharpest criticisms have been heard from within the heart of the legal establishment. With this has come growing interest in alternative forms of billing.
Despite that, few predict the billable hour’s demise. One of the mysteries of the billable hour is how something that is so widely criticized has come to be so firmly entrenched. There are a number of reasons. One is the perception — not totally wrong, but over-generalized — that it boosts lawyers’ incomes. Another is the fact that lawyers, as a breed, are, perhaps, risk-averse and, therefore, wary of change. But one of the reasons is that few lawyers practicing today have experience of anything else. There is a widespread assumption that there really is no other workable alternative.
However, those who claim that there is no other way overlook the fact that the billable hour is, in fact, a comparatively recent invention.
Mr. Smith starts the clock
The billable hour began to dominate the legal profession in the last few decades of the twentieth century. However, its roots extend back almost 100 years. Ironically, in view of the connotations of greed that surround it today, its inventor was someone more often remembered as the father of legal aid in America.
Early in the twentieth century, a lawyer named Reginald Heber Smith took over the running of the Boston Legal Aid Society, a provider of legal services to the indigent. And, in 1919, he authored a seminal book titled Justice and the Poor. This was a study criticizing unequal justice based on wealth.
As former United States Supreme Court Justice Ruth Bader Ginsburg said in a lecture in 2001: “Smith exposed vast differences in the quality of justice available to the rich and the poor. His exposé led to endeavors to narrow the gap, including the establishment of the first national legal aid organization.... [He] galvanized a national movement to provide lawyers for those who could not afford to pay counsel.” (Lecture entitled In Pursuit of the Public Good: Lawyers who Care. Delivered at the University of the District of Columbia, David A. Clarke School of Law, April 9, 2001.)
But as Justice Ginsburg added: “[Smith] did not neglect the remunerative side of work in the law. Among his other distinctions, [he] is credited with inaugurating the practice of calculating lawyers’ fees by billable hours.”
The clock started in 1914, when Smith — who had graduated from Harvard Law School — asked the Harvard Business School to help him devise a system to track and manage the Boston Legal Aid Society’s finances.
Out of this arose the then-novel procedure that staff lawyers should begin keeping detailed records of their time spent on different cases. This was not for billing purposes — the Society’s services were provided free. Rather, it was a management tool to help ensure that resources were deployed effectively.
Later, Smith went into private practice and took with him the accounting system he had devised in his legal aid work. He became an evangelist for the recording of time, and influential in the subject of law practice management. Hence, daily time sheets found their way onto lawyers’ desks next to the blotters, pens, books, and other tools of the trade.
“The statement that a law office needs an accurate cost accounting system seems revolutionary,” Smith wrote in 1940, “but if every business concern has to know its costs, why should the law office be immune?” To him, the hour was the commodity: “The service the lawyer renders is his professional knowledge and skill, but the commodity he sells is time.” (Quotations in this posting from Reginald Heber Smith were included in an article on law.com dated November 25, 2005 — The Billable Hour: Are Its Days Numbered? — by Douglas McCollam of American Lawyer magazine. That article did not cite the source. However, Smith wrote a book called Law Office Organization, which went through numerous editions published by the American Bar Association, all long out of print. The quoted remarks may well have come from one of those.)
Blazing the trail for billions of time entries that were to follow, he added: “We use the hour and the tenth of an hour because it facilitates not only addition but other calculations.... For convenience in figuring nothing surpasses the decimal system.”
Looking back many years later, Smith — who died in 1996 — wrote that while he thought “nothing could be simpler” than a form on which you recorded the client, the name of the matter, and the time you spent working on it, the lawyers at his firm hated the practice. Indeed, Smith wrote, it “seemed to them little better than a slave system.”
Early timekeeping
Although formal timekeeping became routine in many law offices during the 1940s and 1950s, the practice of calculating bills simply by multiplying time by an hourly rate did not catch on immediately.
Rather, for most of the 20th century, lawyers sent out bills that attempted to assign value to the services that had been rendered. The amount of time spent in performing the services was always an important factor in setting the amounts. And, inspired by Smith and his disciples, law firms began tracking time in a more organized manner.
But timekeeping was, initially, more of an internal reporting procedure than something that directly controlled billing. Moreover, time tended to be recorded in something of an impressionistic manner.
The rise of the billable hour
Today, the bean-counters of the legal profession love hourly billing, whereas clients are often wary of it. At the outset, however, the roles were reversed.
Early pressure for time-based billing came from the client side of the relationship. This is because clients began to resent the mystery that lay behind the assignment of dollar amounts on lawyers’ bills at the end of descriptions of services rendered. Many began demanding answers to the question: “Well, how long did this actually take?”
In order to appear responsive, law firms began producing their time records to clients. Thus, information previously maintained solely for internal management purposes was put on center stage in the billing process. Law firm consultants then discovered that by making bills a simple mathematical derivative of time, there was an opportunity to raise revenues.
As a result, by the start of the 1970s, most mid-sized and large firms had shifted to billing solely by the hour for the vast majority of their work. Small firms and solo practitioners for the most part followed along.
How the U.S. Supreme Court boosted the billable hour
A United States Supreme Court decision in 1975 helped cement the billable hour’s position further. Until then, county bar associations in many parts of the country laid down minimum fee schedules for certain types of legal work. The idea was that it was “unlawyerly” to compete on price and that minimum prices had to be maintained in order to uphold professional standards.
Although these rates were — at least, for the most part — set as “minimums,” they became, in effect, the flat fees that all lawyers observed in the areas covered. And lawyers who didn’t observe the fee schedules risked disciplinary action by their state bar.
The Virginia State Bar, for example, warned that “evidence that an attorney habitually charges less than the suggested minimum fee schedule adopted by his local bar Association, raises a presumption that such lawyer is guilty of misconduct.” The American Bar Association’s model ethical code that was in effect until 1969 proclaimed that it was unethical for an attorney to “undervalue” legal services.
As much as I am a supporter of flat fees, I am not a believer in cartels. And officially mandated prices are about as bad a system of setting fees as I could possibly imagine.
Fortunately — although surprisingly late — the Supreme Court held in 1975 that the setting of minimum fees for legal services amounted to a form of price-fixing that was illegal under the Sherman Act. (Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).) Freed of the controls under which they had previously labored, many lawyers who had not yet switched over to hourly billing took the opportunity to do so.
It seemed at the time to be the modern alternative and the wave of the future. Back then, flat rates — which, today, are spoken of as a progressive alternative — seemed tainted. The free market beckoned with the billable hour.
Early doubts about the billable hour
It was not long, however, before some in the profession began to question whether hourly billing was good for the practice of law. In the late 1980s, the American Bar Association set up a task force to look into the prevalence of hourly billing and to examine alternatives.
This resulted in a study published in 1989 called Beyond The Billable Hour. The ABA study began by noting that “[c]lient dissatisfaction exists with respect to hourly billing.” The task force’s Chairman, Richard C. Reed, wrote in the foreword: “Perceptive lawyers have long realized that hourly billing often rewards the inefficient practitioner and penalizes the well-organized efficient lawyer.”
One of the study’s contributors was Mary Ann Altman, a lawyer who founded Altman Weil, a prominent consulting firm providing services to the legal profession. She wrote that she was “involved personally in the introduction of time records to the legal profession” 30 years earlier. However, she candidly admitted to the problems of billing by the hour, including the fact that “very few lawyers keep truly accurate time records.”
Billable hour inflation
In the last 10 years of the twentieth century, the billable hour came under further scrutiny. The cause was not simply concern that hourly billing was an irrational and inefficient way of charging for legal services, but — rather — that it was having a bad effect on the way that law is practiced.
Lawyers were being motivated by the numbers of hours they could bill. Many, indeed, were becoming obsessed by maximizing hours in order to enhance their reputations among colleagues and bosses. Others were burning out, such that the profession was losing good people. Fewer were finding time for pro bono work.
These criticisms were fueled by sharp increases in the numbers of hours that law firms expected those on their payroll to bill, a consequence of salary wars that took place as top firms vied with one another — and with the then-booming financial services sector — to recruit the brightest and the best.
Concerns about the billable hour carried into the new millennium, with some very high-profile voices — including at least one member of the U.S. Supreme Court — beginning to speak out on the subject. In 2002, the American Bar Association published a further critical study.
What’s wrong?
Much of the criticism is that lawyers — especially in major metropolitan markets — have come under pressure to bill too many hours. That is a legitimate concern, but it doesn’t address the inherent flaws of charging for legal services by the hour. Those flaws are present even when workloads are reasonable.
The billable hour is touted as a clean system in which clients pay for what they get in a transparent and linear manner. In practice, however, the process of recording billable time involves a host of arbitrary, irrational, and sometimes suspect practices. Far from transparently reporting time expended, it is prone to distort it.
This isn’t just a matter of deliberate bill padding. The built-in inaccuracies of time-based billing result from the nature of the time-recording protocols that are inherent to the process — for example, the assumption in just about all lawyers’ hourly billing systems that the lowest increment of recordable time known to humankind is six minutes and the belief among some lawyers that it is actually 12 minutes.
Then there are the arbitrary decisions about when the meter is turned on and off. Not to mention the ethical issues involved in selling the same time twice. (Consider, for example, the lawyer who shows up for case management conferences on behalf of two different clients with separate cases on the same calendar. Or the lawyer who performs work for Client A while sitting on a plane on Client B’s dime.)
Only by looking at the minutiae of how time is actually recorded in different situations in which lawyers find themselves can one fully understand the billable hour’s intrinsic flaws.
But the problems with the billable hour extend to more than its inherent distorting effect. The whole system rewards the plodding, inefficient lawyer and penalizes the skilled lawyer who completes a task quickly and effectively. Furthermore, it does not take proper account of value delivered, nor of the nature of the task performed. The meter ticks away at the same steady pace, regardless of what is being done — even when the time spent involves unskilled and semi-skilled tasks (such as sitting in traffic or looking for a lost file). In addition, the billable hour chills the attorney-client relationship.
Padding is also an issue. In fact, this may be the “elephant in the dining room” whose presence in the profession many would prefer to overlook.
An article published in 2006 in Law Practice Management, a magazine of the American Bar Association, described what its author called “ordinary billing inflation or padding” as “probably rather common.” (Ethics and Time-Based Billing, by Michael Downey, Law Practice Management, January 2006.) Four years earlier, a commission set up by the ABA identified padding as one of the problems of the billable hour saying that it was not “an imaginary fear.” (ABA Commission on Billable Hours Report (2002).) In 2007, a survey by Professor William Ross — a prominent authority on the ethics of legal billing — reported that two thirds of a cross-section of lawyers taking part had “specific knowledge” of clients being invoiced for work never performed or charged for exaggerated amounts of time. (Professor Ross has also written a book titled, The Honest Hour: The Ethics of Time-Based Billing by Attorneys (1996, Carolina Academic Press). His Web site, which includes details of the attorney-billing surveys referenced above, is at www.williamgeorgeross.com.)
Better billing
The alternatives to the billable hour involve shifting the focus away from time expended and onto value delivered. They are not without their own difficulties. And what works in some circumstances may not be practical in others.
But if one spends too much time focusing on the difficulties, one risks “paralysis through analysis” — the state in which every option, including the status quo, seems so flawed that one finds it very hard either to make a change or to positively commit to not changing.
It may not be until you move away from the billable hour that you realize just what a millstone it is. There is a sense of liberation. Of spring in the air. Trust me, it is worth it. And if, by chance, you don’t like it, you can always go back. Although I suspect that few do.
Being an alternative biller is a little like being a Mac user in a Windows world — one smugly uses a system that is widely regarded as superior, but that nonetheless has a single-digit market share. Go figure.
John Derrick has written a book called Boo to Billable Hours. It’s available on Amazon or you can read it for free on this Web site by clicking here.

Thoughts After an Oral Argument That I Lost

Sat, 3 Oct 2009 11:49:55 -0700

There’s a story — maybe apocryphal — of the hospital that put out an announcement after a surgery saying: “The operation was a success. But the patient died.”
I had one of those experiences this past week. I had an oral argument in front of Division Eight in the Second District Court of Appeal in Los Angeles. I represented the appellant. It was a good oral argument in every sense. The panel was engaged and asked good questions.
There’s a saying that there are three oral arguments in an appeal — the one the lawyer intends to make, the one he actually makes, and the one he afterwards wished he had made. I suspect that anyone claiming to be an appellate practitioner who claims never to have experienced that is either not being very candid or otherwise hasn’t done many oral arguments. However, this was an occasion where I actually did say what I wanted to say and really can’t think of anything else useful that I could have said.
But I lost. In an unusually swift decision, the opinion came down a few days later affirming.
I share this vignette for two reasons. One is to make the point — obvious, perhaps, but important — that an appellate lawyer can only deal with the deck of cards he or she is handed, i.e., the record in the case and the law. One can do as good a job as possible, and even be a better advocate than one’s opponent, but that doesn’t mean one is going to win. One should only have regrets if there is something one didn’t do, but could have done.
I sometimes act as a judge in law school moot court competitions, where the students conduct appellate oral arguments. There, the prize goes to the best advocacy, regardless of who has the stronger case. In real life, however, one can make the better argument, but still lose.
The other point has to do with Division Eight, in particular. This division used to be very unusual, in that at the start of oral argument, the presiding justice would often announce the court’s tentative decision.
The last time I argued before that division, I was also there for the appellant. I was there for a pair of consolidated appeals, and the presiding justice said at the start that the court intended to reverse with respect to one of them. So rather than arguing that one, I said that I would reserve all my time to rebut the respondent’s argument — because the roles had really been switched. I was now defending a decision, and my opponent was trying to turn it around. I’m glad to report that she failed to do so.
This time, however, there was no tentative on my case, nor did there appear to be in any of the others on the Division Eight calendar that morning. There has been a change in presiding justice. I deduce that the policy has changed.
I am a big supporter of appellate courts telling the parties which way they are leaning before oral argument. I think that arguments are better and more focused if lawyers know what they are arguing against.
Throughout all the districts and divisions of the California Court of Appeal, there generally is a tentative opinion drafted and provisionally agreed before oral argument. But unlike the tentatives in trial courts, these are not generally shared with the lawyers.
So although one is arguing to people who — to some extent, at least — have already made up their minds, one doesn’t know the direction in which those minds have gone. Sometimes one can get a good feel by the questions (or even the absence thereof). But not always.
There is just one appellate court in California where one does get tentatives. That is Division Two of the Fourth District, which is in Riverside. The Riverside court mails out its tentative opinion before oral argument. So when the parties appear, they can speak directly to what is on the court’s mind.
I think that’s an excellent system. But justices elsewhere in the state often speak of it in very negative terms.
The best argument I have heard against sending out tentatives before oral argument is that once a court has publicly stated where it is leaning, it is likely to become more firmly entrenched in that position, because it somehow appears weak or fickle to change position after an oral argument.
There might be something in that. But the reality is that, in general, appellate panels are strongly wedded to their tentatives, regardless of whether those tentatives are made public. This raises another question, which is whether appellate courts even should tentatively decide cases before oral argument. In federal court — at least, in the U.S. Court of Appeals for the Ninth Circuit — they generally don’t.
Anyway, I have some more thoughts on oral argument, but this post is getting long, so I’ll hold them over for another one in the near future.

Boo to Esquire

Sat, 5 Sep 2009 12:09:05 -0700

One can divide the U.S. legal profession into two: Those who use the title “Esquire,” and those who don’t. I am among the latter.
I’ve never understood why many American lawyers use Esquire (often abbreviated to “Esq.”). The term is an old English one, but — in its origins — has nothing to do with the practice of law. Rather, it was a courtesy term used for men — not women — who owned real property but didn’t have a “proper” title.
In the class-driven and title-obsessed social hierarchy of England, “Esquire” was better than nothing if you weren’t a “Sir” or a “Lord,” but didn’t wanted to be lumped in with the masses. It derives from the noun “squire,” defined in the Oxford American Dictionary as “a man of high social standing who owns and lives on an estate in a rural area, esp. the chief landowner in such an area.”
In time, though, Esquire came to be used in Britain as a title applied to any male who wished it. It became a fancier alternative to “Mister,” regardless of your ownership of real property. But it was never a term used to identify British lawyers.
In practice, Esquire became used only on envelopes and on the first page of typed letters. As a cash-strapped British undergraduate at Oxford, I would get letters from my bank manager addressed to John Derrick, Esq., inquiring with a mixture of obsequiousness and menace what plans I had to reduce my overdraft. Anyone who put it other than on envelopes would appear ridiculous. And with the passage of time, and a general decline in pomposity, few people in Britain even use it there. It has gone the way of the bowler hat.
In the American legal profession, however, Esquire is alive and kicking — at least, in some segments. And it’s used by lawyers of both genders. (But it isn’t the sole property of lawyers, nor is it gender-neutral in all American contexts. Esquire magazine is focused on men’s fashion and style and has nothing to do with the practice of law.)
My sense as someone who has operated on both sides of the Atlantic is that those living in the US have evolved into a people who, in some respects, use titles more than the British from whom they separated. That is ironic. The US constitution rejected the British tradition of titles as a measure of social rank. Article I provides: “No Title of Nobility shall be granted by the United States.”
Nonetheless, while eschewing titles of birth, Americans award titles based on a person’s occupation. If the occupation evolves, the highest title endures into retirement. For example, an American Ambassador is addressed as “Ambassador Smith.” Not so elsewhere. This endures not only while he or she is doing the job, but for ever more (unless a better one replaces it). It is, in effect, a form of lifetime nobility.
Judges and members of Congress get their own prefix — “the honorable.” In Britain, that prefix is reserved for the children of titled persons, no matter how debauched.
In the legal profession, the need to display a title appears to rest on a concern that lawyers need to identify themselves. Doctors of medicine are titled “Doctor.” Military leaders are titled “General.” So what about lawyers? But, personally, I’ve never found a problem being “recognized” as a lawyer in those circumstances where I want to be.
If we lawyers really do need a title, maybe we, too, should be called “doctor.” After all, we do have doctorates (although our counterparts in Britain generally don’t). That’s how German lawyers are addressed.
Talking of doctors, one oddity is that in Britain, surgeons are not called “doctor.” A male surgeon is simply a “Mister.” It would offend protocol to call him “doctor.”
Actually, why do we even need Mr., or Mrs., or Ms.? What’s wrong with a name?

Bad Oral Argument, Odd Invitation

Sat, 8 Aug 2009 15:52:59 -0700

I came across a recording of a “bad oral argument” to an appellate court on YouTube. Actually, it was not so much bad as futile and pathetic. But what is odd is why it was even taking place — a lawyer was, in effect, asking the Court of Appeals to overturn the US Supreme Court. This was in federal court, and under the federal rules — as opposed to the California state ones — oral argument is by invitation of the court. So what I was left wondering was how come the judges wanted it to take place at all? Anyway, here it is (and it’s worth sticking with it to the end)...