Monday, January 19, 2015

Sometimes the marginally coherent brief still wins

[Most of this week's post was originally a comment I wrote on Janet Reid's awesome blog.  I'm reproducing it here because I want to preserve it for posterity :) ]

I once wrote a brief on a hotly contested issue [with only murky case law from the Court of Appeal] while I had the flu. By the date of oral argument, I was feeling much better.

Judge: “Mr. X [defense counsel], your brief is very eloquent and well-argued.”

Defense counsel: “Thank you, Your Honor.”

Judge, glaring at me: “I wish I could say the same thing about Plaintiff's brief.”

Me, mentally: Hey now! I wrote that brief when I had the flu. Gimme a break.

Me, audibly: “Yes, Your Honor.”

Judge: “Defendant's brief makes a surprisingly good argument about X [the issue we were contesting].”

Defense counsel: Gloats

Judge: “Does the defense wish to add anything today?”

Defense counsel, with sideways smirk at me: “No, Your Honor. Defendant's brief states all of Defendant's arguments, which I am aware Your Honor has already read and understood.”

Judge nods, turns to me: “I don't recommend using your brief as a writing sample, if you're ever looking for employment.”

Me, smarting from the benchslap: “Yes, Your Honor.”

Judge: “However, I did find one reasonably coherent argument in Plaintiff's brief, on page 12, lines 8-21.”

Me: “Thank you, Your Honor.”

Judge: “Does Plaintiff wish to add anything today?”

Me, flipping to page 12 [which thankfully was the main thrust of the argument]: “Thank you, Your Honor. Plaintiff would just like to draw the court's attention to Plaintiff's reasonably coherent argument on page 12, lines 8-21, which although not as eloquent as Defendant's brief, is a concise and accurate statement of the law [more accurate than the Court of Appeal, although I didn't say that], and is Plaintiff's position.”

Judge: “Submitted?”

Both of us: “Submitted.”

Judge: “Well, as much as Defendant makes a very eloquent and creative argument on this issue that I've never considered before, Plaintiff's argument, although definitely not the best-written argument I've ever read [raises eyebrow at me], does accurately state the interpretation of this issue as I understand it from the Court of Appeal. I'm ruling in favor of Plaintiff.”

Moral:  sometimes the marginally-coherent brief still wins.

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